United States v. Strothers

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-8-2007
USA v. Strothers
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1820
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 06-1820
____________
UNITED STATES OF AMERICA,
v.
MARK ANTHONY STROTHERS,
Appellant.
____________________________________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 05-244)
District Judge: Honorable Thomas M. Hardiman
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 30, 2007
____________________________________
Before: BARRY and ROTH, Circuit Judges, and
DEBEVOISE * , Senior District Court Judge
(Filed: February 8, 2007)
____________________________________
OPINION
____________________________________
*
Honorable Dickinson R. Debevoise, Senior District Court Judge for the District of New
Jersey, sitting by designation.
Debevoise, Senior District Court Judge
Appellant, Mark Anthony Strothers, a diabetic who has terminal liver disease and
has had two heart attacks and a stroke, appeals from the District Court’s sentence on the
ground that a 115-month term of imprisonment, which was at the top of the advisory
guideline range, is unreasonable. For the reasons set forth below, we will affirm.
I.
The facts critical to a resolution of the sentencing issue raised on this appeal are
those set forth in the Presentence Investigation Report (“PSR”). The parties raised no
objections to the facts as stated in the PSR at the sentencing hearing, and we will rely on
them in this opinion.
On February 8, 2005, City of Pittsburgh police officers responded to a call from
Strothers’s wife, Junita Gatlin. She had obtained a Protection from Abuse Order against
Strothers but had let him into her home earlier that day. When he was leaving, she saw a
handgun in his rear pants pocket, and, upon questioning, Strothers stated, “I’m going to
kill the bitch with it.” This occasioned Ms. Gatlin’s call to the police. She informed them
that she feared that Strothers was intending to use the gun to harm his current girlfriend.
Later that day, the officers located and arrested Strothers. In due course, he was
indicted and charged with being a felon in possession of a firearm. On November 23,
2005, he pled guilty to the offense.
Although he was initially ordered detained, in view of his multiple health problems
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the District Court agreed to modify Strothers’s detention status and to release him to
Renewal Treatment, Incorporated (“Renewal”), a community confinement center. This
would permit Strothers to attend medical appointments at the Veterans Administration
Hospital in connection with his terminal liver disease.
Approximately one week after Strothers was released, he left Renewal to attend an
appointment with medical personnel. While away, he made an unauthorized visit to a
girlfriend and allegedly assaulted her. That same day, she filed a petition for a Protection
from Abuse Order. Upon his return to Renewal, Strothers tested positive for cocaine, and
he had a blood alcohol level of .027.
Two days later, on December 4, 2005, Strothers again left Renewal for medical
treatment. Prior to keeping his appointment at the Veterans Administration Hospital, he
violated the Protection from Abuse Order his girlfriend had obtained. Members of the
Renewal staff picked him up at the Hospital to return him to the facility. However, he
expressed suicidal ideation, and as a result, he was admitted to the Hospital for
observation.
These violations of the conditions of his release led to Strothers’s renewed
detention. On June 22, 2005, he changed his plea to guilty to the charge in the
indictment.
The PSR recited in detail the medical condition of the then 46-year-old defendant.
In 1992, he was diagnosed with Hepatitis C, for which he received continuing medical
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treatment. In or about October 2000, he began seeing a liver specialist because of his
end-stage liver disease. Prior to his detention for the current offense, he was being treated
at the Veterans Administration Hospital in Oakland, Pennsylvania. In addition to his end-
stage liver disease, Strothers suffers from the effects of two prior heart attacks, a recent
stroke, two hernias, diabetes, and blood clots.
The PSR addressed the usual range of subjects. It calculated Strothers’s Total
Offense Level to be 23 and, based upon an extraordinarily extensive criminal career, a
Criminal History Category of VI. The offense level of 23, combined with a Criminal
History Category of VI, resulted in a guideline range of 92 to 115 months of
incarceration.
The Court held a sentencing hearing on February 23, 2006. Strothers had moved
for a downward departure based on his medical condition, need for medical treatment,
and shortened life expectancy. The Court noted that it had reviewed the PSR and an
addendum to it, the government’s position statement, and the motion to depart.
Strothers’s counsel dwelt extensively upon his client’s serious medical conditions
and the discretion the Court derived from Booker to sentence outside the guidelines in
order to fashion a sentence that would address the medical conditions. He pointed out
that the multiple crimes of violence were largely domestic violence and arose out of
alcohol abuse. During his presentation to the Court, Strothers also attributed his problems
to drinking - the cause of both his criminal offenses and his liver disease.
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The government argued against Strothers’s departure motion both on guideline
grounds and upon application of § 3553 factors.
When imposing sentence, the Court considered the guideline computation and
reviewed the other relevant § 3553 factors. The Court noted Strothers’s severe alcohol
and drug problems as well as his medical status, but stated, “I cannot overlook the fact
that you have continued to commit further crimes, and most importantly, commit violent
crimes, since being diagnosed with Hepatitis C in 1996.” (App. at 37). The Court further
noted that Strothers’s drug and alcohol induced mental distress and hardship “is being
forced onto other people, and it’s causing harm to other people.” (App. at 38). Further,
as the Court observed, Strothers had not taken advantage of the Court’s leniency in
allowing him to seek treatment instead of confinement. The Court concluded that the
Bureau of Prisons can adequately care for Strothers’s medical condition and “I cannot
agree that a downward departure pursuant to section 5H1.4 is warranted.” (App. at 38,
39).
The Court summarized its findings, noting that it had considered the relevant
factors set forth in § 3553, “including the nature and circumstances of the offense, and the
history and characteristics of the defendant, the need to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the offense,
the need to afford adequate deterrence to criminal conduct, the need to protect the public
from further crimes of the defendant, and the need to provide the defendant with needed
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education or vocational training, medical care or other correctional treatment in the most
effective way.” (App. at 42). The District Court thereupon imposed a sentence that
included a term of imprisonment of 115 months.
II.
The sole issue raised by this appeal is the reasonableness of Strothers’s 115-month
sentence of imprisonment. In arriving at that sentence, the District Court followed the
post-Booker sentencing procedures mandated by this Court. See United States v. Cooper,
437 F.3d 324, 329-32 (3d Cir. 2006). The first step is to “calculate the correct guidelines
range applicable to a defendant’s particular circumstances.” Id., at 330. “[T]he standard
of proof under the guidelines for sentencing facts continues to be preponderance of the
evidence.” Id. The District Court commenced its analysis by calculating the correct
guideline sentence, a straightforward task because there were no disputes with respect to
the applicable guideline factors.
Next, a district court must resolve any departure motions. The Court in this case
addressed and decided Strothers’s motion for a downward departure, denying it for
cogent reasons.
Finally, a district court must give “meaningful consideration to the § 3553(a)
factors.” Id. at 329. Appellate courts review the resulting sentence for reasonableness.
Id. at 326-27. The District Court in the present case carefully considered the relevant §
3553(a) factors as described above, and this Court does not find that the resulting
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sentence is unreasonable.
In view of the circumstances described above, the sentence that the District Court
imposed must be affirmed.
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