Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-14-2007
USA v. Byrd
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4335
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"USA v. Byrd" (2007). 2007 Decisions. Paper 1482.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 05-4335
UNITED STATES OF AMERICA
v.
HENRY C. BYRD,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 04-cr-00107-1)
District Judge: Honorable William H. Walls
Submitted Under Third Circuit LAR 34.1(a)
March 8, 2007
Before: SLOVITER and AMBRO, Circuit Judges, and POLLAK,* District Judge
(Filed March 14, 2007)
OPINION
*
Hon. Louis H. Pollak, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
SLOVITER, Circuit Judge
Defendant-Appellant Henry Byrd appeals his sentence of thirty months’
imprisonment on the grounds that the sentence imposed was unreasonable because the
District Court treated the Sentencing Guidelines as mandatory rather than advisory.
Finding no merit to Byrd’s appeal, we will affirm the judgment of sentence.
I.
As we write primarily for the parties, we will only briefly state the facts. Byrd was
a loan officer at First Union Bank (“First Union”) in Moonachie, New Jersey. According
to the Presentence Report, his position at First Union provided him access to sensitive
customer information, including, inter alia, addresses, bank account numbers, account
balances, social security numbers.
In April 2002, Byrd and his co-defendant, Dennis Williams, along with Eric Dock,
who later pled guilty in a related case, agreed to take part in a scheme to steal the
identities of First Union customers in order to gain access to the customers’ bank
accounts. The scheme was to proceed as follows: Byrd agreed to steal customer
information and turn it over to Williams. Williams would forward the information to
Dock, who would then create fraudulent identifications, such as drivers’ licenses. The
ultimate purpose of the scheme was to use the fraudulent identifications to withdraw over
$200,000 from the accounts of First Union’s customers.
In accordance with the conspiracy, Byrd stole information from approximately
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eight First Union customers who had substantial funds in their respective accounts. As
the conspirators had agreed, Byrd forwarded the stolen account information to Williams,
and Williams in turn forwarded it to Dock. Byrd was arrested on April 25, 2002, before
the conspirators had actually withdrawn any money from the customer accounts.
II.
We have jurisdiction to review Byrd’s sentence pursuant to 18 U.S.C. § 3742(a).
We review the District Court’s judgment of sentence for reasonableness. See United
States v. Booker, 543 U.S. 220, 261 (2005); United States v. Cooper, 437 F.3d 324, 326-
27 (3d Cir. 2006).
Byrd argues that the District Court’s sentence was unreasonable because the
District Court stated that the guidelines were not mandatory, but nonetheless “sentenced
the defendant in strict accordance with the guidelines.” Appellant’s Br. at 5.
In its remedial opinion in Booker, the Supreme Court excised 18 U.S.C. § 3553(b)
from the federal sentencing guidelines. That provision had previously made the
guidelines mandatory. Cooper, 437 F.3d at 333. The Court “directed appellate courts to
review sentences for reasonableness, stating this review applied ‘across the board.’” Id.
at 326 (quoting Booker, 543 U.S. at 258-65). As we stated in Cooper, “[a]ccording to the
[Supreme] Court, our review is guided by the factors set forth in 18 U.S.C. § 3353(a), the
same factors the Court directed district judges to consider when sentencing defendants
under the advisory guidelines.” Id. at 327.
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Cooper provided detailed instructions to district courts in this circuit as to how to
arrive at sentencing decisions. The district court must examine the relevant factors,
which are as follows:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for–
(A) the applicable category of offense committed by the applicable category
of defendant as set forth in the guidelines . . . .
18 U.S.C. § 3553(a).
In so doing, the district court must give meaningful consideration to each of the
enumerated factors. Cooper, 437 F.3d at 329. However, the district court is under no
obligation to “discuss and make a finding as to each of the § 3553(a) factors if the record
makes clear the court took the factors into account in sentencing.” Id. Nor is the court
required to state that it has read the Booker decision or that it understands that the
guidelines are no longer mandatory. Id.
As part of its § 3553(a) analysis, the district court must correctly calculate the
guidelines range. Id. at 330. However, the mere fact that the ultimate sentence imposed
by the district court falls within the guidelines range does not immunize the sentence from
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review for reasonableness, nor does it conclusively demonstrate that the district court
considered all of the § 3553(a) factors. Id. at 331. Otherwise, “we would come close to
restoring the mandatory nature of the guidelines excised in Booker.” Id. at 331 (internal
citations omitted). On the other hand, a sentence that falls within the guidelines range “is
more likely to be reasonable than one outside the guidelines range.” 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 and any sentencing
grounds properly raised by the parties which have recognized legal merit and factual
support in the record.” Id.
We have reviewed the record in Byrd’s case and we find no merit in his
argument that the District Court improperly treated the sentencing guidelines as
mandatory. The District Court properly considered the guidelines range and took into
account the sentence called for by the guidelines. The Court noted that the guidelines
were “not mandatory,” App. at 11, and that in crafting its sentence it would use the
“advice” provided by the guidelines. App. at 24.
The District Court also properly considered the nature and circumstances of the
offense and the need for the sentence to provide just punishment, reflect the seriousness
of the offense, promote respect for the law, protect the public from the defendant, and
afford adequate deterrence to others. 18 U.S.C. § 3553(a). The Court stated that Byrd
abused his authority as an employee of First Union and “willfully and knowingly”
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committed the offense. App. at 24. Further, the Court believed that Byrd needed to “feel
the sting” of punishment in order to deter others. App. at 24.
The District Court also properly considered the history and characteristics of the
defendant pursuant to 18 U.S.C. § 3553(a)(1). The Court took into account Byrd’s lack
of prior offenses and the fact that he had an alcohol problem when he committed the
offense. The Court also acknowledged Byrd’s contributions to his community, but found
that such community activity was common to most white-collar crime cases.
Finally, the District Court properly considered all of the arguments raised by Byrd
and his counsel. The Court considered and rejected Byrd’s request for an additional one-
level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b) because
he did not plead guilty until a week before the trial was scheduled. The Court also
considered Byrd’s remorse for the harm he caused to his family. Nevertheless, the Court
sentenced Byrd to a sentence within the guidelines range.
The District Court’s sentence was reasonable and we see no problem with the
manner in which it conducted the sentencing process. As such, we will not disturb the
Court’s sentence. We will affirm the judgment of conviction and sentence.
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