Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-15-2006
USA v. Burton
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1912
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"USA v. Burton" (2006). 2006 Decisions. Paper 90.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-1912
UNITED STATES OF AMERICA
v.
JERMAINE BURTON
a/k/a
KEITH DIAMOND
a/k/a
MICHAEL DIAMOND
Jermaine Burton,
Appellant
On Appeal from the United States District Court
for District of New Jersey
District Court No. 04-CR-182
District Judge: The Honorable William H. Walls
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 13, 2006
Before: SMITH and ROTH, Circuit Judges,
and YOHN, District Judge*
(Filed: December 15, 2006)
*
The Honorable William H. Yohn, Jr., Senior District Judge for the Eastern
District of Pennsylvania, sitting by designation.
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OPINION
SMITH, Circuit Judge.
On October 21, 2004, a jury found Jermaine Burton guilty of conspiring to defraud
the United States in violation of 18 U.S.C. § 371. United States District Judge William
Walls sentenced Burton after the Supreme Court issued its decision in United States v.
Booker, 543 U.S. 220 (2005), to 60 months’ imprisonment and three years of supervised
release. This timely appeal followed.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States
v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
Burton contends that his sentence should be vacated and that this matter should be
remanded for resentencing because the District Court failed to follow the proper
procedures at resentencing. He asserts that the Court did not make a determination as to
the appropriate guideline range. In addition, Burton contends that in imposing sentence
the District Court failed to consider the various factors set out in 18 U.S.C. § 3553(a). In
Burton’s view, the Court “simply” sentenced him to the maximum period of sixty months.
In United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), we instructed that post-
Booker “district courts must follow a three step sentencing process.” Id. at 247. The first
step requires calculating the applicable guideline range. Second, the district court must
formally rule on any motions of the parties and requests for departure. In the final step,
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the district court must “exercise [its] discretion by considering the relevant § 3553(a)
factors in setting the sentence they impose regardless whether it varies from the sentence
calculated under the Guidelines.” Id. (quoting Cooper, 437 F.3d at 329) (internal
quotation marks and ellipses omitted). Here, Burton takes issue with steps two and three.
We find no error by the District Court at step two in the sentencing process which
would warrant vacating his sentence and remanding for resentencing. The District Court
did not, as Burton points out, finish its computation of the guideline range as it failed to
rule on the government’s request for enhancements on the basis of Burton’s role in the
offense and an obstruction of justice. It explained, however, that Burton’s guideline
range, even without these enhancements, already exceeded the statutory maximum of
sixty months. Because Burton could not be sentenced to more than sixty months, the
District Court did not commit reversible error by abbreviating the process and correctly
declaring that the guideline range was sixty months, consistent with the statutory
maximum.
Nor do we find any merit to Burton’s assertion that the District Court erred at step
three in the sentencing process by sentencing Burton to the maximum of sixty months.
The Court specifically noted Burton’s age, his above average intelligence, and his ability
to pull off the fraudulent scheme that resulted in a loss, as found by the jury, of $1.8
million. The Court further noted Burton’s criminal history, as well as his ability to con
people. Based on reasoned consideration of these factors, the District Court declared that
this offense deserved jail time. In fact, the Court found that this offense was egregious
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and it expressed its hope that the punishment would make Burton realize, consistent with
his remarks during his allocution, that he had erred and neglected his family. The District
Court’s comments clearly demonstrate consideration of the need to protect the public, to
impose adequate deterrence, and to reflect the seriousness of the crime. Because the
District Court gave “meaningful consideration to the § 3553(a) factors” as required by
Cooper, 437 F.3d at 329, we will affirm the judgment of the District Court.
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