United States v. Douglas Cantey , 486 F. App'x 305 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2835
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UNITED STATES OF AMERICA
v.
DOUGLAS CANTEY,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 09-cr-504)
District Judge: Hon. Susan D. Wigenton
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Submitted Under Third Circuit LAR 34.1(a)
June 28, 2012
Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.
(Opinion Filed: June 29, 2012)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
While on supervised release for committing wire fraud, Douglas Cantey was
arrested and charged with credit card fraud and violating the terms of his supervised
release. Cantey pled guilty to those charges in the United States District Court for the
District of New Jersey and was sentenced to time served for the credit card fraud and 24
months’ imprisonment for the violation of his supervised release. He appeals, arguing
that there were procedural errors in the sentencing, that the sentence was substantively
unreasonable, and that the District Court denied his right to allocution. Because the
sentence imposed was procedurally and substantively reasonable and because Cantey was
not denied the right to allocute, we will affirm.
I. Background
Cantey’s criminal activity dates back to the early Nineties when he was convicted
of credit card-related crimes nine times. In 2004, continuing his criminal conduct,
Cantey engaged in a scheme whereby he and his co-conspirators made unauthorized wire
transfers through Western Union in order to steal more than $400,000. Cantey was
arrested and pled guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. §§
371 and 1343 in the United States District Court for the Southern District of New York.
In April 2006, he was sentenced to 57 months’ imprisonment and three years’ supervised
release.
After his term of imprisonment ended in December 2008, Cantey’s supervised
release was transferred to the District of New Jersey and he promptly returned to his
criminal activities. From January 2009 until his arrest in June 2009, Cantey fraudulently
opened lines of credit using the identifying information of deceased or elderly victims,
and he used those fraudulently-opened accounts to purchase various items.
2
Cantey was arrested in June 2009 and charged with one count of unauthorized
access of a device with the intent to defraud, 18 U.S.C. § 1029(a)(2), 1 and with violating
his supervised release. Cantey pled guilty to both counts in February 2010 in the United
States District Court for the District of New Jersey.
Before his sentencing hearing in June 2011, Cantey offered to provide information
to the government about Abdul Williams, a fellow inmate who was awaiting trial on a
firearms charge. According to Cantey, Williams had conspired with attorney Clifford
Minor and another individual, Jamal Muhammad, for Muhammad to falsely confess to
Williams’s firearms charge. Cantey’s cooperation in revealing that scheme led to the
arrest of all three individuals and they later pled guilty to witness bribery charges.
At his sentencing hearing, the Court began by noting that it had considered the
government’s motion for a downward departure pursuant to U.S.S.G. § 5K1.1, 2 the
defendant’s submission requesting a sentence of time served for both counts, and a
personal letter from Cantey to the Court. The Court heard from Cantey’s attorney, who
urged the Court to give “a sentence of time served both for the substantive offense and
for the violation sentence for [Cantey’s] probation violation … .” (App. at 59a.) The
1
18 U.S.C. § 1029(a)(2), (c) provides that “[w]hoever … knowingly and with
intent to defraud traffics in or uses one or more unauthorized access devices during any
one-year period, and by such conduct obtains anything of value aggregating $1,000 or
more during that period … shall, if the offense affects interstate or foreign commerce, be
punished … [with] a fine … or imprisonment for not more than 10 years, or both … .”
2
U.S.S.G. § 5K1.1 provides that “[u]pon motion of the government stating that the
defendant has provided substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court may depart from the guidelines.”
3
defense cited Cantey’s cooperation, his personal history, his prospects for rehabilitation,
and his gambling addiction and medical condition 3 as the bases for its request.
Following the defense’s arguments, the Court asked Cantey if he would like to say
anything. Cantey said “[w]ell, first I just want to apologize,” but he was, for some
reason, unable to finish his comments. (App. at 64a.) The government stated that it did
not object to the defense’s proposed sentence, noting that, in its view, “a time served
sentence would [not be] unreasonable.” (App. at 65a.) The Court then returned to
Cantey, who said “I first want to apologize for being here and to any of the victims who
were compromised [by] my actions. And I just pray that your Honor’s merciful.” (App.
at 65a.)
The Court then considered various factors before sentencing Cantey. The Court
took into consideration the government’s § 5K1.1 motion. In considering the factors
enumerated in 18 U.S.C. § 3553(a), the Court recognized its objective in crafting a
sentence that “would be sufficient but not greater than necessary to reflect the
seriousness” of Cantey’s crimes. (App. at 67a.) The Court noted Cantey’s long criminal
history and that he had essentially committed the same crimes of identity theft and credit
card fraud many times since 1991. The Court also noted that Cantey was out of prison
for only a month before resuming his criminal activity. In considering Cantey’s
gambling addiction, the Court stated that it was unsure to what extent that alleged
addiction played a role in his crimes. With respect to the unauthorized access conviction,
3
During the sentencing hearing, defense counsel referred to a then-undiagnosed
skin condition afflicting Cantey.
4
the Court granted the government’s motion for a downward departure, reducing Cantey’s
offense level from 15 to 10 because of his cooperation, and sentenced him to time served
based on his time in prison since June 2009.
The Court then sentenced Cantey to 24 months’ imprisonment for the supervised
release violation. In crafting the sentence for that violation, the Court did not believe that
time served was appropriate given Cantey’s extensive criminal history and his return to
criminal activity only a month after being released from prison. The Court stated that
while it had considered the defendant’s cooperation, it was not sufficient to erase his
misconduct and, in particular, his rapid return to crime. After imposing the sentence, the
Court allowed the defense to again articulate the reasons why a time-served sentence was
appropriate for the supervised release violation. The defense emphasized Cantey’s
cooperation, but the Court responded that it had considered the issue and found his
sentence to be appropriate even in light of that cooperation. Cantey filed this timely
appeal.
II. Discussion 4
Cantey argues on appeal that the sentence imposed was procedurally and
substantively unreasonable. He also argues that the District Court denied his right to
allocution. Both sets of argument are based on the premise that the sentencing hearings
for the unauthorized access charge and the violation of supervised release were separate.
4
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the
procedural and substantive reasonableness of the sentence imposed by the District Court
for abuse of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).
5
Cantey is fundamentally wrong, however, in viewing the sentencing hearing for
the two convictions as being two distinct hearings. The Court held a single sentencing
hearing for both the substantive offense and supervised release violation. The factual
circumstances leading to those charges are the same. The defense opened its arguments
at the sentencing hearing by making a request for time served on both counts and
provided arguments to support that position (App. at 59a (asking the Court to sentence
Cantey to “time served both for the substantive offense and for the [supervised release]
violation”)), and concluded its remarks by again making a request for time served on both
counts. Because the unauthorized access charge and the sentencing violation involved
the same conduct, the Court’s analysis throughout the sentencing hearing was applicable
to both charges.
Turning to the procedural reasonableness question, § 3553(a) provides for a
number of factors to be considered in imposing a sentence, including the nature and
circumstances of the offense, the characteristics of the defendant including his criminal
history, the need for the sentence to reflect the seriousness of the offense and to deter
future criminal conduct, the kinds of sentences available and the sentencing guidelines,
the need to avoid unwarranted disparities between sentences for similar crimes, and the
need to provide restitution to any victims. 18 U.S.C. § 3553(a). While a district court
must give “meaningful consideration to the [§ 3553(a)] factors,” United States v. Grier,
475 F.3d 556, 1569 (3d Cir. 2007), there was no procedural error here because the Court
offered a thoughtful analysis of those factors during the sentencing hearing.
6
Cantey argues that the District Court did not consider a mitigating personal
characteristic – his gambling addiction – in sentencing him, but the Court did consider
that issue. (App. at 67a (“Now, I know you say that this is all as a result of a gambling
addiction. I don’t know if it is or it isn’t. There’s some part of the presentence report
that said that that was just something that you were feigning to receive some type of
consideration for some prior offense.”).) Cantey also argues that the Court did not
consider that he had already served over two years in jail at the time of sentencing, but
again, the Court noted the time that he had already served. (App. at 70a (“I do recognize
that you have been incarcerate[d] for a period of time.”).) Finally, Cantey argues that the
District Court did not consider his substantial cooperation and the risk of retaliation he
faced as a result, but the District Court considered Cantey’s cooperation in crafting the
sentence. (App. at 74a (“While I certainly have taken into consideration your
cooperation, I am of the opinion that the consecutive aspect of this violation is necessary
because of the factual background, quite honestly. I mean you were released in
December and started this offense to which you entered a plea of guilty in January.”);
App. at 66a (“[T]here was obviously a risk of safety involved as well, and potential
danger to Mr. Cantey for cooperating, given the nature of the cooperation, given the
nature of the individuals involved, given the nature of the offenses as well that were
involved.”).)
We also reject Cantey’s contention that the sentence imposed by the District Court
was substantively unreasonable. “Our substantive review requires us not to focus on one
or two factors, but on the totality of the circumstances. … [and] the party challenging the
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sentence has the burden of demonstrating unreasonableness.” Tomko, 562 F.3d at 567.
Our inquiry in reviewing substantive reasonableness boils down to this:
… absent any significant procedural error, we must give due deference to
the district court’s determination that the § 3553(a) factors, on a whole,
justify the sentence. In other words, if the district court’s sentence is
procedurally sound, we will affirm it unless no reasonable sentencing court
would have imposed the same sentence on that particular defendant for the
reasons the district court provided.
Id. at 568 (internal quotation marks and citations omitted).
Here we believe that, as discussed above, the District Court thoughtfully
considered the § 3553(a) factors. The Court offered a persuasive rationale for imposing a
24-month sentence, focusing on Cantey’s extensive criminal history and his rapid return
to criminal activity following his release from prison. 5 Such facts provide a sound basis
for the District Court’s sentence. The Court considered defense counsel’s arguments and
even entertained additional defense argument asking for reconsideration of the sentence
after it was announced. The Court assessed those additional arguments and again reached
the same conclusion. The Court’s carefully measured sentence was, in short,
substantively reasonable.
Finally, Cantey argues that he was denied the right of allocution. We disagree.
Prior to sentencing, a defendant has the right to make a statement to the Court and to
present any information in mitigation of the sentence. Fed. R. Crim. P. 32(i)(4) (“Before
imposing sentence, the court must ... address the defendant personally in order to permit
5
Further, the sentence was in accord with the statutory maximum of 24 months’
imprisonment, 18 U.S.C. § 3583(e)(3), and was within the guidelines range of 21 to 27
months’ imprisonment, U.S.S.G. § 7B1.4(a).
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the defendant to speak or present any information to mitigate the sentence.”); see United
States v. Adams, 252 F.3d 276, 279 (3d Cir. 2001) (“[T]he right of allocution [is] an
important safeguard that should be strictly enforced according to its terms.”). That right
extends to hearings involving the revocation of supervised release. United States v.
Plotts, 359 F.3d 247, 249 (3d Cir. 2004) (“We conclude that a criminal defendant’s right
of allocution extends to release revocation hearings.”). Here, Cantey was offered an
opportunity to address the Court, not once but twice, though the first was truncated.
Cantey’s argument again stems from the misconception that the Court held two separate
sentencing hearings for the same conduct. Cantey made no subsequent request to address
the Court following his first two allocutions that day but rather complains that he was not
invited to allocute a third time. He had his say, however, and the District Court did not
deny him the opportunity to allocute.
III. Conclusion
For the forgoing reasons, we will affirm the sentence imposed by the District Court.
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