Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-13-2007
USA v. Colian
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4800
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NON-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 05-4800 & 06-2986
UNITED STATES OF AMERICA
v.
MARK ALAN COLIAN,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No. 05-cr-00110-1)
District Judge: The Honorable William W. Caldwell
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 12, 2007
Before: SMITH and COWEN, Circuit Judges,
and YOHN, District Judge*
(Filed: April 13, 2007)
OPINION
*
The Honorable William H. Yohn, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
PER CURIAM.
In this case we examine the question of whether the District Court acted
unreasonably when it pronounced a 48-month sentence on remand after three of the seven
original counts against the defendant were dismissed, having previously imposed a 63-
month sentence. We hold that this sentence is not unreasonable.
I.
In this non-precedential opinion, we write only for the parties, and therefore our
factual recitation is brief. At issue is Mark Colian’s appeal from his re-sentencing. After a
jury trial, Colian was found guilty of seven counts of mailing threatening communications
in violation of 18 U.S.C. § 876(c). The District Court sentenced him to 63 months,
explaining that “[t]his term consists of nine months on each count, to be served
consecutively.” In his initial appeal, Colian alleged that his request for a motion for
acquittal should have been granted as to Counts Two, Three, and Five because the
Government failed to prove that the letters Colian mailed which were the basis of those
charges contained the powdery substance that had been inside the other envelopes. Those
letters contained only the statement “Death to Israel! Death to America! Allah is great,”
which did not constitute a true threat. The Government agreed and filed a motion to
remand for resentencing in this Court, conceding that the motion for acquittal as to
Counts Two, Three, and Five should have been granted. This Court granted the motion.
On May 30, 2006, the District Court resentenced Colian to 48 months, explaining
that “[t]his term consists of 12 months on each count to be served consecutively.” The
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District Court offered no further explanation of its sentence, except to overrule the
objections of defense counsel to the Government’s request for the upper end of the
Guidelines and to state that “I have to treat this matter seriously.” On June 9, 2006, the
Court issued an order explaining the “background” of the Judgment and Commitment
Order. In this statement, the Court explained that “[a]lthough full consideration was given
to the § 3553 factors in resentencing Colian, the record at sentencing does not reflect that
fact.” The Court then set forth its reasons, in accordance with 18 U.S.C. § 3553(a), for
sentencing Colian to 48 months.
Colian now argues that his sentence of 48 months should be reduced by 12
months, for a total of nine months per count, as his original sentence accorded nine
months per count. Colian also asserts that his sentence was unreasonable because the
District Court did not consider the § 3553(a) factors.
II.
The procedure followed in resentencing Colian is problematic. During the
resentencing hearing, the Court failed to mention its consideration of any of the 18 U.S.C.
§ 3553(a) factors. See United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (“To
determine if the court acted reasonably in imposing the resulting sentence, we must first
be satisfied the court exercised its discretion by considering the relevant factors.”).
Instead, the Court’s reasoning came 10 days after the sentencing hearing, on the final day
for Colian to file an appeal from the judgment of sentence.
Subsection (c) of § 3553 provides that “[t]he court, at the time of sentencing, shall
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state in open court the reasons for its imposition of the particular sentence....” 18 U.S.C. §
3553(c) (emphasis added). At the time of sentencing, the District Court offered only its
observation that the matter needed to be treated seriously. This statement was insufficient
to satisfy the requirements of § 3553. Consequently, the delayed explanation of the
Court’s reasoning was erroneous.
Even though it was error for the District Court to omit the discussion of the §
3553(a) factors from the sentencing hearing, this error was harmless. See United States v.
Vazquez, 271 F.3d 93, 103 (3d Cir. 2001) (“[S]entencing errors can also be harmless....”).
In United States v. Stevens, 223 F.3d 239, 241-46 (3d Cir. 2000), this Court applied plain
error review to the district court’s failure to verify that the defendant had read and
discussed the presentence report with his attorney, as required by Federal Rule of
Criminal Procedure 32. The Stevens panel noted that although “we have allowed for a
more functional fulfillment of the rule,” the district court “fell short of even this mark.”
Id. at 241-42. Because Stevens did not object to the omission of the verification, the panel
reviewed for plain error, and concluded that although the error was plain, it did not affect
Stevens’ substantial rights, and therefore was not reversible error. Id. at 243; United
States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006) (applying plain error review to a
defendant’s argument that the district court failed to give a sufficient statement of reasons
under § 3553(c)). Similarly, although the District Court’s omission here was plain, it did
not violate his substantial rights because the sentence was reasonable.
The District Court’s explanation, though tardy, satisfies the requirement that the
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court consider the § 3553(a) factors on the record in shaping a sentence.1 See Cooper, 437
F.3d at 329 (“The record must demonstrate the trial court gave meaningful consideration
to the § 3553(a) factors.”). The Court evaluated the nature of the crime, the defendant’s
individual characteristics and criminal history, the deterrent effect of the sentence, the
applicable guideline range, the defendant’s behavior while incarcerated and on parole, the
relevant conduct of the discharged counts, prior prison discipline relating to the
circumstances of this case, and the likelihood of recidivism. Based on these factors, the
48-month sentence was not unreasonable. The fact that the Court initially explained that
the 63-month sentence was divisible into nine-month increments for each of the seven
original counts does not render the revised 48-month sentence unreasonable. The Court
explained that it considered the seriousness of the offense to require a longer period of
incarceration than the 36 months requested by defense counsel, and adequately stated its
reasoning under § 3553(a).
Notwithstanding the reasonableness of the sentence, we strongly discourage the
procedure that was followed here. We reiterate the mandate of § 3553(c) and the
presumption in our case law that all issues pertaining to the pronouncement of sentence
1
We note that even though the record at the time Colian took his initial appeal on May
31, 2006 did not contain the District Court’s June 9, 2006 explanation, neither party has
objected to the inclusion of this docket entry in the record on appeal. See FED. R. APP. P.
10(a)(3) (the record on appeal includes docket entries). Colian filed his second appeal on
June 9, 2006, challenging his sentence. However, as Colian does not argue that the June 9
order is not properly part of the record on appeal, and indeed has included it in his own
submissions and framed the issue in terms of the reasonableness of his sentence, we
proceed to reasonableness review.
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will be addressed at the sentencing hearing while the defendant is present. See Cooper,
437 F.3d at 330 n.8 (“[S]entencing judges normally state and resolve sentencing issues
from the bench while the sentencing proceeding is underway.”); id. at 332 (“There are no
magic words that a district judge must invoke when sentencing, but the record should
demonstrate that the court considered the § 3553(a) factors....” (emphasis added)); see
also United States v. Severino, 454 F.3d 206, 212 (3d Cir. 2006) (evaluating what the
district court said at the sentencing hearing); United States v. Cooper, 394 F.3d 172, 175
(3d Cir. 2005) (noting that “[f]rom the bench the District Court explained its reasons...”);
Stevens, 223 F.3d at 246 (“[D]istrict court errors like this one are regrettable and easily
avoidable, and we exhort district courts to engage in the “simple practice” of addressing
defendants directly....”). As this Court explained in United States v. Grier, 475 F.3d 556
(3d Cir. 2007):
The rationale by which a district court reaches a final sentence is important.
It offers the defendant, the government, the victim, and the public a window
into the decision-making process and an explanation of the purposes the
sentence is intended to serve. It promotes respect for the adjudicative
process, by demonstrating the serious reflection and deliberation that
underlies each criminal sentence, and allows for effective appellate
oversight.
Id. at 572. Our opinion today does not derogate from the principle that a
contemporaneous explanation of the rationale should accompany the pronouncement of
sentence.
For the foregoing reasons, we will affirm the judgment of the District Court.
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