United States v. Suarez ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-10-2003
USA v. Suarez
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4340
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"USA v. Suarez" (2003). 2003 Decisions. Paper 466.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-4340/4341/4412/4413/4414
UNITED STATES OF AMERICA
v.
BERNARDO BERMUDEZ SUAREZ,
Appellant No. 02-4340
_________
UNITED STATES OF AMERICA
v.
JORGE SILVO BUSOT-ALFONSO,
Appellant No. 02-4341
UNITED STATES OF AMERICA
v.
TERESA CUNI PEREZ,
Appellant No. 02-4412
__________
UNITED STATES OF AMERICA
v.
YOANDRA VELAZQUEZ,
Appellant No. 02-4413
__________
UNITED STATES OF AMERICA
v.
RODOBALDO RODRIGUEZ,
Appellant No. 02-4414
On Appeal from the District Court of the Virgin Islands (St. Croix)
District Judge: Thomas K. Moore
D.C. Criminal Nos. 02-cr-00070, 02-cr-00063, 02-cr-00064, 02-cr-00065, 02-cr-00069
Argued: May 1, 2003
Before: Roth, McKee & Cowen, Circuit Judges
(Filed: June 10, 2003)
Douglas J. Beevers, Esq. (Argued)
Office of Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
Charlotte Amalie, St. Thomas USVI, 00804
Attorney for Appellant
Nelso L. Jones, Esq.(Argued)
Office of Unites States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas USVI, 00802-6924
Attorney for Appellee
OPINION OF THE COURT
PER CURIAM
Defendants appeal the sentence that was imposed following the plea of guilty that
each entered after being charged with violating 18 U.S.C. § 1546(a). For the reasons that
follow, we will affirm.
Inasmuch as we write only for the parties who are familiar with the background of
this appeal, we need not discuss the factual or procedural background except insofar as
maybe helpful to our brief discussion. Defendants raise only a single issue on appeal.
They contend that the district court imposed sentences on each of them pursuant to a
“practice” that “amounted to a fixed personal sentencing policy rather than the case-by-
case consideration required by U.S. v. King, 53 F.3d 589, 591 (3d Cir. 1995).”
Appellant’s Br. at 7. Each of the defendants was sentenced to a period of three months
incarceration with credit for time served. Prior to sentencing, the district court asked
defense counsel if there was any objection to sentencing all of the defendants charged in
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this case at the same time, and counsel stated that he had no objection. Inasmuch as
defendants did not object before the district court, we review only for plain error. U.S. v.
Olano, 507 U.S. 725, 734-5 (1993).
Appellants seek to establish that they were sentenced pursuant to some “practice”
in violation of U.S. v. King. Although remarks of the district court during the sentencing
procedure lend some credence to this argument when taken out of context, it is clear to us
that the sentences that were imposed were not imposed pursuant to the kind of practice
that we criticized in King. There, the district court had a practice of determining a certain
fixed number of levels to depart downward under U.S.S.G. § 5k1.1. We noted that such a
standardized practice deprived defendants of the individualized examination that each
was entitled to at sentencing. Here, the fact that each of the defendants received the same
sentence results not from a “common practice”, but from the fact that each of the
defendants was convicted of identical crimes under identical circumstances, each of the
sentences imposed was within the Sentencing Guidelines range for the offense of
conviction, and the district court’s individualized scrutiny of each defendant’s
background and circumstances did not justify imposing a sentence of other than three
months on any of the defendants.
The district court explained:
While, I listen very carefully. I read the presentence reports.
And Mr. Beevers is aware, at least, that is my practice, for
persons such as defendants here have the ability fortuitously
to be able to, even though the charge with immigration
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offenses, to be able to be released and not spend the time in
jail, that I find it difficult to treat them differently from
persons that has spent their last dollar getting their document
or paying the smuggler, and therefore have no contact, in the
Virgin Islands or in the Continental United States, to be able
to be released on bail pending their appeal.
App. at 64. The court’s explanation of the rationale for imposing similar sentences
differentiates these sentences from those we condemned in King. Moreover, the court’s
explanation also disposes with the defense argument that appellants were penalized for
exercising their right to bail.
The district court must weigh several factors in order to avoid unwarranted
sentencing disparities among defendants with similar records who are convicted of
similar conduct. 18 U.S.C. § 3553(a)(6). Here, inasmuch as each was convicted of
identical immigration violations accomplished the same way, there was no basis of
distinguishing among the defendants individual criminal conduct. In imposing sentence,
the court merely explained that it did not believe it was fair to sentence defendants who
had the resources to obtain bail in a manner which gave them an unfair and unwarranted
advantage over defendants with inadequate resources to make bail. Rather than
penalizing defendants for their right to bail as defendants contend, the court’s explanation
merely reflects an appropriate concern over imposing sentences which treat all of the
defendants fairly without penalizing those defendants who lack the resources to be
released on bail pending sentencing. We find no error in these sentences, let alone any
plain error. Accordingly, we will affirm.
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