United States v. John Hughes, Jr. ( 2013 )


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  •                                                                     NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 12-1301
    _____________
    UNITED STATES OF AMERICA
    v.
    JOHN J. HUGHES, JR.,
    Appellant
    _____________
    Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Criminal No. 1-10-cr-00190-001)
    District Judge: Honorable Yvette Kane
    _____________
    Submitted Under Third Circuit LAR 34.1(a)
    January 07, 2013
    Before: RENDELL, FISHER and JORDAN, Circuit Judges
    (Opinion Filed: January 9, 2013)
    _____________
    OPINION OF THE COURT
    _____________
    RENDELL, Circuit Judge.
    This appeal arises from a criminal trial in which Defendant John Hughes, Jr. was
    found guilty of one count of conspiracy to use fire to commit a federal felony and
    interstate transportation of stolen property and one count of interstate transportation of
    stolen property. For the reasons stated below, we will affirm the judgment of conviction
    and sentence.
    I.
    On June 16, 2010, a grand jury in the Middle District of Pennsylvania returned a
    three-count indictment naming Hughes and a co-conspirator, Angel Rodriguez. The
    indictment charged both with (1) conspiracy to commit arson and interstate transportation
    of stolen property in violation of 18 U.S.C. § 371; (2) arson in violation of 18 U.S.C. §
    844(i) and 18 U.S.C. § 2; and (3) interstate transportation of stolen property in violation
    of 18 U.S.C. § 2314 and 18 U.S.C. § 2. (App. 26a-29a.) Hughes entered a plea of “not
    guilty” to each of the three charges on June 22, 2010; Rodriguez entered a plea of not
    guilty on July 13, 2010.
    On January 19, 2011, a grand jury returned a superseding indictment, again
    naming Hughes and Rodriguez as defendants and charging both with three crimes. (App.
    30a.) Count I of the superseding indictment charged both with conspiracy to use fire to
    commit a federal felony and interstate transportation of stolen property in violation of 18
    U.S.C. § 371; Count II charged both with use of fire to commit a federal felony in
    violation of 18 U.S.C. § 844(h) and 18 U.S.C. § 2; and Count III charged both with
    interstate transportation of stolen property in violation of 18 U.S.C. § 2314 and 18 U.S.C.
    §2. (App. 30a-33a.) On February 22, 2011, Rodriguez entered a plea of guilty to a single
    count of arson in violation of 18 U.S.C. § 844(i). Hughes, on the other hand, elected to
    go to trial on all three counts pending against him. On August 3, 2011, Hughes was
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    convicted by a jury on Counts I and III of the superseding indictment, and acquitted on
    Count II.
    At sentencing on January 24, 2012, Hughes argued that he was entitled to credit
    for acceptance of responsibility under the Guidelines because he had only contested the
    counts related to arson, and that he accepted responsibility for the acts underlying the
    theft counts. The District Court denied his request, noting that “[a]t trial, [Defendant]
    noted to the jury that he was going to accept responsibility for the thefts, but he never
    pled guilty to anything. He took the case to trial and decided that he was going to roll the
    dice. I see no acceptance.” (App. 927a; see also App. 912a-927a.) Ultimately, Hughes
    was sentenced to a term of 180 months’ imprisonment. Rodriguez was sentenced to 60
    months’ imprisonment.
    Hughes presents three issues on appeal: (1) that the use-of-fire object of the
    conspiracy count should have been dismissed; (2) that he should have been given credit
    for acceptance of responsibility; and (3) that his sentence was excessive and substantively
    unreasonable. We will address each argument in turn.
    II.
    A. Superseding Indictment
    Hughes argues that Count I of the superseding indictment – conspiracy to use fire
    to commit a federal felony and interstate transportation of stolen property – should have
    been dismissed. Count I lists two objects, including the use of fire to commit a federal
    felony. The superseding indictment does not specifically say what “federal felony”
    constituted the underlying offense, however, and he argues that it could be “any number
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    of offenses” and that the indictment “failed to apprise [him] of what he need[ed] to be
    prepared to meet.” (Br. at 15.) Thus, Hughes argues that Count I should have been
    dismissed. His argument fails.
    This Court has plenary review of the sufficiency of the allegations contained in an
    indictment. United States v. Huet, 
    665 F.3d 588
    , 594 (3d Cir. 2012). An indictment must
    set forth the elements of an alleged crime with “sufficient factual orientation” to allow a
    defendant to prepare an adequate defense. See id. at 596. We find that the superseding
    indictment at the very least provided Hughes with sufficient notice as to the elements of
    the alleged crime such that the Hughes knew and could prepare for the allegations he
    would have to defend.
    The elements of a charge of conspiracy are (1) a unity of purpose between the
    alleged conspirators; (2) an intent to achieve a common goal; and (3) an agreement to
    work together toward that goal. United States v. Pressler, 
    256 F.3d 144
    , 149 (3d Cir.
    2001) (citing United States v. Gibbs, 
    190 F.3d 188
    , 197 (3d Cir. 1999)). The superseding
    indictment named the co-conspirators and set forth the two objects of the conspiracy:
    profiting from the sale of stolen property and concealment of the theft of property
    through setting a fire at a specific location. (App. 30a.) Furthermore, the superseding
    indictment specifies the overt acts taken in furtherance of the conspiracy: (1) that the co-
    conspirators stole property and inventory from the victim, Americana, and (2) that
    Hughes directed his co-conspirator to set fire to Americana’s building. (App. 31a.) In
    other words, the charge explicitly stated that Hughes conspired to use the setting of a fire
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    in furtherance of the felonious conspiracy and the felonious transportation of stolen
    property across state lines.
    As the superseding indictment adequately gave Hughes notice of the elements of
    the crime he was charged with committing, we will affirm the District Court’s denial of
    Hughes’s motion to dismiss Count I of the superseding indictment.
    B. Acceptance of Responsibility
    Hughes further argues that because the use-of-fire object of the conspiracy should
    be vacated, he actually accepted responsibility for his actions as to all allegations for
    which he was convicted, and is therefore entitled to credit for acceptance of responsibility
    under the Guidelines. As discussed above, this Court does not find that the use-of-fire
    object of the conspiracy must be vacated. Furthermore, we do not find that the District
    Court’s denial of his request for credit for acceptance of responsibility was clearly
    erroneous. A district court’s determination as to a defendant’s acceptance of
    responsibility for purposes of the Sentencing Guidelines is “entitled to great deference on
    review” and “may be reversed only if ‘clearly erroneous.’” United States v. Singh, 
    923 F.2d 1039
    , 1043 (3d Cir. 1991) (quoting U.S.S.G. § 3E1.1 (commentary) (application
    note 5)). Although conviction by trial does not preclude downward departure for
    acceptance of responsibility, United States v. Howe, 
    543 F.3d 128
    , 138 (3d Cir. 2008),
    the district court is in no way obligated to grant downward departure. Accordingly, we
    will affirm the District Court’s refusal to grant Hughes credit for acceptance of
    responsibility.
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    C. Reasonableness of the Sentence
    Finally, we address Hughes’s argument that the disparity between his sentence and
    that of his co-conspirator rendered his sentence substantively unreasonable. (App. 932a-
    937a.) The procedural and substantive reasonableness of a sentence is reviewed under an
    abuse of discretion standard. United States v. Tomko, 
    562 F.3d 558
    , 567 (3d Cir. 2009).
    In this case, the District Court did not abuse its discretion in sentencing Hughes to a term
    of imprisonment significantly longer than that of Rodriguez. As the record shows, the
    District Court compared the relevant facts pertaining to Hughes and Rodriguez, including
    the crimes for which they were convicted, their respective roles in the conspiracy, the
    level of cooperation they offered to the government, and other background facts. (App.
    942a-943a.) The record reflects the District Court’s rational and meaningful
    consideration of the factors under 18 U.S.C. § 3553(a), and therefore, we will affirm the
    District Court’s imposition of Hughes’s sentence.
    III.
    For the reasons stated above, we will affirm the judgment of conviction and the
    sentence imposed by the District Court.
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