United States v. Terrell Stevenson

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 15-1942

UNITED STATES OF AMERICA

v.

TERRELL STEVENSON,

Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-12-cr-00145-005)
District Judge: Honorable Robert D. Mariani
___________

Submitted May 20, 2016

Before: SMITH, HARDIMAN, and SHWARTZ,
Circuit Judges.

(Filed: August 9, 2016)
Michelle L. Olshefski
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Attorney for Appellee

Gino A. Bartolai, Jr.
238 William Street
Pittston, PA 18640
Attorney for Appellant

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal arises out of a federal investigation into a
heroin distribution ring that operated out of a Scranton hip-
hop radio station and recording studio called Hood Promo.
Eight individuals associated with the hip-hop heroin hub were
indicted on various federal drug and weapons charges. All of
them pleaded guilty except for Appellant Terrell Stevenson.

Before Stevenson was brought to trial, the Defendants
filed dozens of pretrial motions. Although most of the delay
occasioned by the various motions and plea negotiations was
“excludable time” under federal law, the Government
conceded that Stevenson’s rights under the Speedy Trial Act
were nevertheless violated. Accordingly, Stevenson filed a
motion to dismiss his indictment, which the District Court
granted without prejudice to the Government’s right to indict
him anew on the same charges. Stevenson’s principal

2
claim in this appeal is that the District Court abused its
discretion when it granted his motion to dismiss without
prejudice. He also argues that the indictment failed to allege
all the elements of the crime of fraud in relation to
identification documents. In addition, he appeals the District
Court’s denial of his motions to suppress, the propriety of the
District Court’s conduct at trial, and the reasonableness of his
360-month sentence.

I

A

In December 2011, at the request of the Lackawanna
County Drug Task Force, federal agents became involved in
the search for an elusive heroin dealer named Siquana
Wallace. Using a variety of investigatory methods, including
confidential sources, physical surveillance, undercover
purchases, body wires, and a pole camera, the agents
concluded that Hood Promo was the Scranton hub of a heroin
ring. The owner of Hood Promo—Lamar Thomas a.k.a.
“Hood”—and another man—Greg Bush a.k.a. “G”—were
suspected of transporting heroin from New York to Scranton
and then distributing the drugs out of Hood Promo. One
member of the drug trafficking organization was a 5’6” black
male in his late twenties known as “Inf” or “Infinite,” who
drove a gray BMW. In addition to concluding that “Inf” dealt
heroin in nearby Wilkes-Barre, the agents learned that “Inf”
was wanted in New York for drug-related crimes and that his
real name was Terrell Stevenson.

While conducting surveillance outside Hood Promo on
February 15, 2012, DEA Special Agent William Davis
observed a black male arrive at the studio in a gray 2004

3
BMW, enter and exit the building, and begin driving in the
direction of Wilkes-Barre. His “investigative instinct” roused,
Davis ran the vehicle’s registration and arranged for the local
police to conduct a traffic stop after he learned the car was
registered to Lamar Thomas. App. 962. The driver of the
car—who agents later learned was Appellant Stevenson—
produced a Georgia driver’s license bearing the name Nathan
Ernest Truitt. The police accordingly sent “Truitt” on his way.

Stevenson did not escape the DEA’s grasp for long.
Court-authorized wiretaps of Thomas’s and Bush’s phones
and further investigation into Hood Promo led the authorities
to home in on several suspects, including Stevenson. On May
22, 2012, Special Agent Davis submitted an affidavit in
support of a search warrant application for five properties,
one of which was Stevenson’s residence. A magistrate judge
issued the warrant and the DEA executed it, arresting
Stevenson and his roommate Chris Taylor, and seizing
hundreds of glassine baggies of heroin, a loaded handgun
(found in Stevenson’s room and later confirmed to be stolen),
fraudulent driver’s licenses and credit cards in the names of
Gregory Matthew Henderson and Nathan Ernest Truitt (found
on Stevenson’s person), and various other inculpatory items
and documents. In all, eight individuals were arrested around
the same time in connection with the Hood Promo
conspiracy.

B

The number of Defendants and the complexity of the
case resulted in a lengthy and sometimes hectic pretrial
process. On June 5, 2012, a federal grand jury returned an
indictment against seven defendants, including Stevenson,
who was charged with conspiracy to distribute and to possess

4
with intent to distribute 100 grams or more of heroin within
1,000 feet of a school in violation of 21 U.S.C. §§ 846 and
841; unlawful use of a communication facility (i.e., using a
cellphone in furtherance of his illegal activity) in violation of
21 U.S.C. § 843(b); and unlawful possession of a stolen
firearm in violation of 18 U.S.C. § 922(j). Because Stevenson
refused to enter a plea at his June 13, 2012 arraignment, the
District Court entered a plea of not guilty on his behalf and
scheduled trial for August 20, 2012, setting July 16 as the
deadline for filing pretrial motions. When that date arrived,
Stevenson filed his first of eight unopposed motions to extend
the pretrial motions deadline, all of which were granted by the
District Court. The cycle repeated when a federal grand jury
returned a superseding indictment on October 16, 2012,
which was identical to the original indictment, except that it
added an eighth defendant. The Court once again entered a
plea of not guilty for Stevenson after he refused to enter a
plea.

The next year involved a steady stream of pretrial
motions and extension requests from the Defendants. Among
them was a motion by Stevenson to suppress evidence seized
from his residence for lack of probable cause to support the
search warrant, which the District Court denied on October
25, 2013. From that day until February 7, 2014, the 70-day
Speedy Trial Act clock was running (except for one
excludable day). See 18 U.S.C. § 3161(c)(1), (h). Seizing on
this inappropriate delay, Stevenson filed a motion to dismiss
on June 16, 2014. After the Government conceded that at
least 103 non-excludable days had passed since Stevenson’s
arraignment, the District Court agreed with Stevenson that the
Speedy Trial Act required dismissal of the first superseding

5
indictment.1 Unfortunately for Stevenson, the Court did not
agree with his request to dismiss the indictment with
prejudice.

Guided by three factors the Speedy Trial Act requires
trial courts to consider, see 18 U.S.C. § 3162(a)(2), the
District Court held that dismissal without prejudice was
appropriate. The Court concluded that the first factor—the
seriousness of the offense—weighed against dismissal with
prejudice because courts have consistently agreed that drug
trafficking and firearm offenses are serious. It also decided
that the second factor—the facts and circumstances that led to
the Speedy Trial Act violation—militated against dismissal
with prejudice. In the District Court’s view, the non-
excludable delay was relatively harmless “in light of the
repeated delays and the chaotic nature” of the case—much of

1
During the pendency of Stevenson’s motion, the
Government obtained a second superseding indictment
against Stevenson which reasserted the same charges as the
first one and added counts for possession with intent to
distribute a controlled substance in violation of 21 U.S.C.
§ 841(a)(1), possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c),
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1), and possession of a firearm by a fugitive
from justice in violation of 18 U.S.C. § 922(g)(2). Applying
out-of-circuit precedent holding that the speedy trial period
does not reset when stale charges are strategically reasserted
in a superseding indictment, the Court ruled that the
Government’s second superseding indictment did not remedy
the violation with respect to the three original counts of the
first superseding indictment.

6
which was attributable to the acts of the eight Defendants.
App. 43. Finally, the Court viewed the third factor—the
impact of a new prosecution on the administration of
justice—as supporting dismissal without prejudice because
Stevenson did not show that he was prejudiced by the
Government’s violation of the statute. For these reasons, the
Court dismissed the charges against Stevenson contained in
the first superseding indictment without prejudice on
September 4, 2014.

The Government obtained a third superseding
indictment against Stevenson on September 9, 2014. The
charges in that indictment were the same as the one that
preceded it, except for a new count of fraud in relation to
identification documents in violation of 18 U.S.C.
§ 1028(a)(7). Stevenson promptly moved to dismiss this new
charge on the basis that the indictment failed to allege the
interstate-commerce element of the offense, but the District
Court found the indictment sufficient and denied the motion.
In anticipation of defending against this charge, Stevenson
moved to suppress evidence relating to the stop of his vehicle
and his production of false identification. The Court denied
the motion prior to trial, finding that Stevenson had provided
no evidence to support his contention of an unlawful stop, but
allowed Stevenson to re-argue the motion, ultimately
concluding that the stop was supported by reasonable
suspicion that “Inf” was the driver and that criminal activity
was afoot.

After a one-week trial, the jury found Stevenson guilty
on all counts except one: possession of a firearm in
furtherance of drug trafficking. The Court sentenced
Stevenson to 360 months’ imprisonment on the conspiracy-
to-distribute and possession-with-intent-to-distribute counts,

7
96 months on the communications-facility count, 120 months
on each of the firearms-related counts, and 240 months on the
fraud count—all to run concurrently. Stevenson appealed.2

II

Although Stevenson raises several challenges to his
conviction and sentence, his principal argument is that the
District Court abused its discretion when it dismissed the first
superseding indictment without prejudice. He also takes issue
with the adequacy of the facts alleged in the indictment to
support the identification-document fraud charge, the District
Court’s refusal to suppress evidence gathered from the stop of
his vehicle and the search of his residence, the propriety of
the District Court’s conduct during trial, and the
reasonableness of his sentence. We address each argument in
turn.

A

The Sixth Amendment to the United States
Constitution guarantees that “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial.”
U.S. Const. amend. VI. To vindicate this right, Congress
established a bright-line rule in the Speedy Trial Act, 18
U.S.C. §§ 3161–3174, which requires that a trial start “within
seventy days from the filing date (and making public) of the
information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such
charge is pending, whichever date last occurs.” 18 U.S.C.

2
The District Court had jurisdiction under 18 U.S.C.
§ 3231 and we have appellate jurisdiction pursuant to 28
U.S.C. § 1291.

8
§ 3161(c)(1). This deadline is not absolute, however, because
certain periods of delay “shall be excluded . . . in computing
the time within which the trial . . . must commence.” 18
U.S.C. § 3161(h). The most common form of “excludable”
delay results from the filing and disposition of pretrial
motions. 18 U.S.C. § 3161(h)(1)(D).

If a defendant is not brought to trial within the
requisite time, the Speedy Trial Act mandates dismissal of the
indictment upon the defendant’s motion. 18 U.S.C.
§ 3162(a)(2). As for whether the dismissal should be with or
without prejudice, the Act requires the court to “consider,
among others, each of the following factors: [1] the
seriousness of the offense; [2] the facts and circumstances of
the case which led to the dismissal; and [3] the impact of a
reprosecution on the administration of this chapter and on the
administration of justice.” 18 U.S.C. § 3162(a)(2). The
Supreme Court has explained that the “district court must
carefully consider th[ese] factors as applied to the particular
case and, whatever its decision, clearly articulate their effect
in order to permit meaningful appellate review.” United
States v. Taylor, 487 U.S. 326, 336 (1988).3

3
We review the District Court’s dismissal without
prejudice for abuse of discretion and its underlying factual
findings for clear error. Taylor, 487 U.S. at 336–37; see also
United States v. Saltzman, 984 F.2d 1087, 1092 (10th Cir.
1993) (“Because ‘Congress has declared that a decision will
be governed by consideration of particular factors,’ appellate
review is limited to ascertaining ‘whether a district court has
ignored or slighted a factor that Congress has deemed
pertinent to the choice of remedy.’”) (quoting Taylor, 487
U.S. at 336–37).

9
 1

We now turn to the question of whether the District
Court gave appropriate consideration to these factors and
acted within its discretion in dismissing the first superseding
indictment without prejudice.4 The first factor is “the
seriousness of the offense.” 18 U.S.C. § 3162(a)(2). This
element “centers primarily on society’s interest in bringing

4
As a threshold matter, the Government now concedes
that it did not reset the speedy trial clock by obtaining a
second superseding indictment in response to Stevenson’s
motion to dismiss. As we have explained, “[w]hen subsequent
charges are filed in a supplemental indictment that charge the
same offense as the original indictment or one required to be
joined therewith . . . the speedy trial period commences with
the original filing.” United States v. Lattany, 982 F.2d 866,
872 n.7 (3d Cir. 1992) (emphasis added). Hence, the second
superseding indictment did not rescue the three original
charges of the first superseding indictment (conspiracy to
distribute a controlled substance, unlawful use of a
communication facility, and possession of a stolen firearm).
On the other hand, “[i]f the subsequent filing charges a new
offense that did not have to be joined with the original
charges, then the subsequent filing commences a new,
independent speedy trial period.” Id. Because none of the new
charges added in the second superseding indictment were
required to have been joined with the three original charges,
the District Court was correct in dismissing only those three
counts. See Blockburger v. United States, 284 U.S. 299, 304
(1932) (holding that offenses requiring proof of different
elements are distinct and need not be charged together);
United States v. Xavier, 2 F.3d 1281, 1291 (3d Cir. 1993).

10
the particular accused to trial.” United States v. Hastings, 847
F.2d 920, 925 (1st Cir. 1988). The logic behind this factor is
intuitive: “[t]he graver the crimes, the greater the insult to
societal interests if the charges are dropped, once and for all,
without a meaningful determination of guilt or innocence.”
Id.

Stevenson concedes that the drug and firearm charges
at issue are serious because “overwhelming precedent
acknowledg[es] the serious nature of such charges.”
Stevenson Br. 19. See, e.g., Taylor, 487 U.S. at 328, 338–39
(“We have no reason to doubt” that “charges of conspiracy to
distribute cocaine and possession of 400 grams of cocaine
with intent to distribute” are “serious.”); United States v.
Williams, 314 F.3d 552, 559 (11th Cir. 2002) (conspiracy to
distribute and possession with intent to distribute cocaine are
“extremely serious” offenses under the Speedy Trial Act
whose seriousness is compounded by possession of a firearm
during the offenses); United States v. Brown, 770 F.2d 241,
244 (1st Cir. 1985) (charges for distribution and conspiracy to
distribute cocaine are “undeniably serious” and “militate in
favor of dismissal without prejudice”); United States v.
Simmons, 786 F.2d 479, 485 (2d Cir. 1986) (possession of
heroin with intent to distribute is “serious” within the
meaning of the Speedy Trial Act); United States v. Moss, 217
F.3d 426, 431 (6th Cir. 2000) (possession of cocaine with
intent to distribute is a serious offense); United States v.
Wright, 6 F.3d 811, 814 (D.C. Cir. 1993) (same). We join our
sister courts today and hold that Stevenson’s heroin and
firearms offenses are serious crimes for purposes of the
Speedy Trial Act. Accordingly, the District Court rightly held
that the first factor weighed in favor of dismissal without
prejudice.

11
 2

The second consideration—the facts and
circumstances that led to dismissal—also supports the District
Court’s decision. This factor requires courts to consider the
reasons for the delay: did it stem from “intentional dilatory
conduct” or a “pattern of neglect on the part of the
Government,” or rather, from a relatively benign hitch in the
prosecutorial process? United States v. Cano-Silva, 402 F.3d
1031, 1036 (10th Cir. 2005) (“In determining whether the
facts and circumstances warrant dismissal with prejudice we
focus on the culpability of the conduct that led to the delay.”);
see also United States v. Blevins, 142 F.3d 223, 226 (5th Cir.
1998) (“Regarding the facts and circumstances leading to the
dismissal, we look to whether the Government sought the
resultant delays for ulterior purposes as well as whether the
Government’s failure to meet deadlines was repetitive,
regular, and frequent with respect to this defendant.”).

Applying these principles, the District Court
reasonably concluded that although “the Government
certainly neglected its duties by failing to bring th[e] case to
trial” with sufficient dispatch, the circumstances indicated
that the error was “relatively innocent and harmless.” App.
43. For instance, there was no evidence that the Government
had acted in bad faith or to gain some tactical advantage. See
United States v. Becerra, 435 F.3d 931, 937 (8th Cir. 2006)
(bad faith or willful misconduct can support dismissal with
prejudice); United States v. Medina, 524 F.3d 974, 987 (9th
Cir. 2008) (same); Taylor, 487 U.S. at 339. Nor was there
reason to believe that the Government had engaged in a
“pattern of neglect.” Taylor, 487 U.S. at 338–39 (contrasting
a “truly neglectful attitude” with “isolated unwitting
violation[s]”); see also United States v. Kottmyer, 961 F.2d

12
569, 572–73 (6th Cir. 1992) (affirming dismissal without
prejudice where no “pattern of neglect” or “intentional
dilatory conduct” had been shown); United States v. Clymer,
25 F.3d 824, 831–32 (9th Cir. 1994) (noting that “the sheer
length of the [delay] involved” in a Speedy Trial Act
violation may significantly impact whether dismissal with
prejudice is warranted).

Stevenson faults the District Court for looking to the
number of excludable days in addition to the length of the
non-excludable delay in the course of its analysis, but we
perceive no error in that regard. In reviewing the events that
led to the Speedy Trial Act violation, the Court noted that the
non-excludable days that had elapsed between Stevenson’s
arraignment and his motion to dismiss were dwarfed by the
hundreds of days that had been excluded—virtually all due to
motions made by Stevenson and his codefendants.5 But the
Court did not examine the number of excludable days as part
of a balancing exercise. Rather, it did so to inform its
evaluation of the litigation as a whole and indicated that the
Government’s impermissible delay was “explainable in light
of the repeated delays and the chaotic nature of th[e] case,
which, at its height, included eight coconspirator defendants,
several of whom were in the process of negotiating plea

5
For instance, 33 of the 34 motions for extensions of
time and for continuances were filed by Stevenson and his
codefendants. Such delays were no doubt compounded by
Stevenson’s initial refusal to admit that he was, in fact,
Terrell Stevenson in his early appearances before the Court
(posing instead as “Stevenson’s representative”), as well as
his peculiar insistence that the District Court lacked
jurisdiction because the case belonged in admiralty court.

13
arrangements at the time that the Speedy Trial violation
occurred.”6 App. 43–44. Taken together, these facts and
circumstances support the District Court’s conclusion that the
second statutory factor also favored dismissal without
prejudice.7

6
Contrary to Stevenson’s assertion, this assessment
comported with the Government’s explanation for the non-
excludable delay. Accordingly, his citation to the pre-Taylor
case, United States v. Russo, for the proposition that “[s]ome
affirmative justification must be demonstrated to warrant a
dismissal without prejudice” is inapposite. 741 F.2d 1264,
1267 (11th Cir. 1984) (per curiam) (reversing the district
court’s decision to dismiss without prejudice where the only
reason for a several-month delay was the government’s
negligence). In any event, we view Russo as an outlier and are
inclined to agree with its dissent. See id. at 1268 (Atkins, J.,
dissenting). In particular, the majority’s terse consideration of
the Speedy Trial Act factors in that case not only was
insufficiently deferential to the district court, but also
superimposed a strong “affirmative justification” requirement
on the “facts and circumstances” factor—thereby putting a
thumb on the scale in favor of dismissal with prejudice—that
is both absent from the text of the statute and inconsistent
with the Supreme Court’s subsequent instruction in Taylor
that a bare assertion that there was “no excuse” for a given
delay affords inadequate basis for dismissal with prejudice.
487 U.S. at 339.
7
The only Speedy Trial Act violation Stevenson
alleged in the District Court was the 103-day non-excludable
period between October 25, 2013, and February 7, 2014. He
now argues for the first time that the total number of non-

14
 3

The last statutory factor—the impact of a
reprosecution on the administration of the Speedy Trial Act
and on the administration of justice—also supports the
Government. “The main considerations that courts have taken
into account when examining this factor are whether the
defendant suffered actual prejudice as a result of the delay
and whether the government engaged in prosecutorial
misconduct that must be deterred to ensure compliance with
the Act.”8 United States v. Howard, 218 F.3d 556, 562 (6th

excludable days following his arraignment was actually 165
days. Our review of the docket supports this figure, but the
District Court was not required to “scour the record to make
the case of a party who d[id] nothing,” Herman v. City of
Chicago, 870 F.2d 400, 404 (7th Cir. 1989), and Stevenson
has not claimed it was improper for the District Court to rely
on the parties’ stipulation as to the delay. Regardless, the
District Court opined that “[e]ven if there [were] other
nonexcludable days that the parties [did not bring] to the
Court’s attention,” the broader facts and circumstances still
weighed in favor of dismissal without prejudice in light of the
defendant-driven deluge of excludable days throughout the
protracted run-up to trial and the disorder they produced.
App. 43.
8
The Supreme Court has suggested that prejudice to
the defendant is among the “other[]” non-express factors that
the Speedy Trial Act directs district courts to consider. See
Taylor, 487 U.S. at 333–34 (gleaning from the legislative
history “the relevance of prejudice to the defendant”); id. at
344 (Scalia, J., concurring in part) (arguing that the facts “(1)
that prejudice to the defendant is one of the factors that the

15
Cir. 2000) (internal citation and quotation marks omitted); see
also Blevins, 142 F.3d at 226. The District Court concluded
that this factor weighed in favor of dismissal without
prejudice, reasoning that it was “very difficult to discern how
Stevenson could plausibly have been prejudiced by the delay
that occurred,” that he had offered no evidence of prejudice,
and that there had been no Government misconduct beyond
the bare fact of the delay. App. 44.

Stevenson counters by arguing that he suffered actual
prejudice because the delay enabled the Government to reach
plea agreements with some of his co-defendants and turn
them against Stevenson. We are not persuaded for several
reasons. First, at least two co-defendants pleaded guilty and
agreed to testify against Stevenson well before the speedy
trial clock expired. Second, there is no evidence of record that

phrase ‘among others’ in § 3162(a)(2) refers to, and (2) that
that factor is not necessarily determinative [are] so utterly
clear from the text of the legislation that there is no
justification for resort to the legislative history”). Courts have
widely recognized, however, that this technically distinct
factor often fits quite naturally into assessments of the third
express factor. See, e.g., United States v. Sykes, 614 F.3d 303,
309 (7th Cir. 2010) (“That the court should consider whether
the defendant has been prejudiced is implicit in th[e] broadly
stated formula [of § 3162(a)(2)].”); United States v. Godoy,
821 F.2d 1498, 1506 (11th Cir. 1987) (“The third factor
makes clear the flexible, balancing approach required under
§ 3162(a)(1). In addition, it provides authority for considering
such aggravating and mitigating factors as the length of the
delay and the prejudice to the defendant.”); Campbell v.
United States, 364 F.3d 727, 731 (6th Cir. 2004).

16
the Government delayed the prosecution to facilitate turning
witnesses against Stevenson. Third, Stevenson has not shown
that the Speedy Trial Act violation undermined his “ability to
prepare for trial.” United States v. Hernandez, 863 F.2d 239,
244 (2d Cir. 1988). Nor is there any indication that the delay
impaired Stevenson’s ability to mount an effective defense;
for instance, no witnesses or evidence became unavailable as
a result of the delay. Campbell v. United States, 364 F.3d 727,
731 (6th Cir. 2004); United States v. Saltzman, 984 F.2d
1087, 1094 (10th Cir. 1993) (“[T]he defendant has a burden
under the [Speedy Trial] Act to show specific prejudice.”)
(emphasis added). Because its conduct was unintentional,
“penalizing the government for the delay [would not
appreciably] deter any similar behavior in the future.” United
States v. Abdush-Shakur, 465 F.3d 458, 463 (10th Cir. 2006).
And although the delay at issue was significant, Stevenson’s
crimes were very serious and the “administration of justice
would be harmed if reprosecution were barred.” United States
v. Hamell, 3 F.3d 1187, 1189 (8th Cir. 1993); see also United
States v. May, 819 F.2d 531, 534 (5th Cir. 1987) (“When the
charges are serious, courts should impose the sanction of
dismissal with prejudice only for a correspondingly serious
delay, especially in the absence of a showing of prejudice.”).9

9
Notwithstanding the seriousness of his charges,
Stevenson claims the District Court failed to weigh the
gravity of his crimes against the length of the Government’s
delay. But the extent of a Speedy Trial Act violation has no
bearing on the seriousness of the underlying charges against a
defendant. Moreover, the Court properly factored the length
and nature of the delay into its assessment of the facts and
circumstances that led to dismissal and the lack of prejudice
to Stevenson.

17
Moreover, the mere fact that the Government’s case against
Stevenson “may get stronger with time is not sufficient to
support [his] position that his speedy trial right was violated”
absent evidence of prejudice suffered because of the delay.
United States v. Trueber, 238 F.3d 79, 91 (1st Cir. 2001). For
these reasons, the District Court did not err in determining
that the final statutory factor also weighed in favor of
dismissal without prejudice.

* * *

“Dismissal without prejudice is not a toothless
sanction: it forces the Government to obtain a new indictment
if it decides to reprosecute, and it exposes the prosecution to
dismissal on statute of limitations grounds.” Taylor, 487 U.S.
at 342. The Government paid a price for its delay and has had
to expend resources on appeal as a consequence. And while a
zero-tolerance policy for Speedy Trial Act violations
probably would reduce the incidence of such violations, “[i]f
the greater deterrent effect of barring reprosecution could
alone support a decision to dismiss with prejudice, the
consideration of the other factors identified in § 3162(a)(2)
would be superfluous, and all violations would warrant
barring reprosecution.” Id. There are cases in which the
Speedy Trial Act violation is so substantial, the motive so
inappropriate, or the resultant prejudice so great that it would
be an abuse of discretion for a district court to fail to dismiss
an indictment with prejudice. This case is not one of them.

B

Stevenson next challenges his conviction for fraud in
relation to identification documents on several grounds. First,
he claims the third superseding indictment did not include a

18
“plain, concise, and definite written statement of the essential
facts constituting the offense charged.” Fed. R. Crim. P.
7(c)(1). This requirement is rooted in the Fifth and Sixth
Amendments of the Constitution. The former requires grand-
jury indictment for “infamous crime[s],” U.S. Const. amend.
V, and the latter insists upon notice to the defendant of the
“nature and cause of the accusation,” U.S. Const. amend. VI.
Pursuant to these guarantees, the Supreme Court has
instructed that an indictment must contain all the elements of
the charged offense to ensure that a grand jury found them
present and to “fairly inform[] a defendant of the charge
against which he must defend,” as well as “enable[] him to
plead an acquittal or conviction in bar of future prosecutions
for the same offense.” Hamling v. United States, 418 U.S. 87,
117 (1974); see also Russell v. United States, 369 U.S. 749,
768–70 (1962). In other words, “an indictment is facially
sufficient if it (1) contains the elements of the offense
intended to be charged, (2) sufficiently apprises the defendant
of what he must be prepared to meet, and (3) allows the
defendant to show with accuracy to what extent he may plead
a former acquittal or conviction in the event of a subsequent
prosecution.” United States v. Huet, 665 F.3d 588, 595 (3d
Cir. 2012) (internal quotation marks omitted). It is well
established that “a defendant may contend that an indictment
is insufficient on the basis that it does not satisfy the first
requirement in that it fails to charge an essential element of
the crime.” United States v. Stock, 728 F.3d 287, 292 (3d Cir.
2013) (internal quotation marks omitted). That is Stevenson’s
contention here.

The third superseding indictment charged Stevenson
with fraud in relation to identification documents under 18
U.S.C. § 1028(a)(7). Section 1028 has a somewhat disjointed

19
structure: subsection (a)(7) makes it illegal to “knowingly
transfer[], possess[], or use[], without lawful authority, a
means of identification of another person” in furtherance of or
in connection with a crime, and then subsection (c)(3) also
requires that “the production, transfer, possession, or use
prohibited by this section is in or affects interstate or foreign
commerce.”10 Because the statute does not make Stevenson’s
conduct illegal absent this latter requirement, the interstate
commerce proviso is an essential element of the offense. See,
e.g., United States v. Spears, 697 F.3d 592, 601 (7th Cir.
2012), overturned in part on other grounds, United States v.
Spears, 729 F.3d 753 (7th Cir. 2013) (en banc).

The rules governing how a charge must be set forth in
an indictment are not exacting. Indeed, they “were designed
to eliminate technicalities in criminal pleadings and are to be
construed to secure simplicity in procedure.” United States v.
Bergrin, 650 F.3d 257, 264 (3d Cir. 2011) (citation and
internal quotation marks omitted). “[N]o greater specificity
than the statutory language is required so long as there is
sufficient factual orientation to permit a defendant to prepare
his defense and invoke double jeopardy.” Huet, 665 F.3d at
595 (internal quotation marks omitted). “Generally, an
indictment will satisfy these requirements where it informs
the defendant of the statute he is charged with violating, lists
the elements of a violation under the statute, and specifies the
time period during which the violations occurred.” Id.; see
also United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010)
(“An indictment that tracks the language of the underlying
statute generally suffices to meet this standard; provided,

10
Subsection (c) lists alternatives to this interstate
commerce requirement but none apply.

20
however, that the excerpted statutory language sets out all of
the elements of the offense without material uncertainty.”).
Moreover, we have eschewed any approach that insists upon
magic words that perfectly mirror the statutory language of
the charged offense: “[f]ailure to allege the statutory elements
will not be fatal provided that alternative language is used or
that the essential elements are charged in the indictment by
necessary implication.” Gov’t of V.I. v. Moolenaar, 133 F.3d
246, 249 (3d Cir. 1998).

1

Although it presents a close case, Stevenson’s charge
of fraud in relation to identification documents adequately
stated the essential elements of the offense. The indictment
charged that Stevenson:

did knowingly possess, without lawful
authority, a means of identification of another
person with the intent to commit, or to aid or
abet, or in connection with, any unlawful
activity that constitutes a violation of Federal
law, or that constitutes a felony under any
applicable State or local law, to wit: the
defendant possessed a fraudulent Georgia
Driver’s License bearing his photograph but in
the name of M.G.H. with the intent to aid in the
commission of possession with intent to
distribute a controlled substance and unlawful
possession of a stolen firearm.

21
App. 262. Conspicuously absent from this language is a
specific averment regarding the interstate commerce element
of § 1028. Nevertheless, the District Court denied
Stevenson’s motion to dismiss because the count mentioned
Stevenson’s drug and firearm offenses, which expressly
“rel[ied] on allegations of actions in or affecting interstate
commerce.” App. 50. “By alleging that the identification
documents were used to facilitate these activities,” the Court
reasoned, the fraud count “adequately states one of the
necessary elements of subsection (c), namely that the
‘possession . . . prohibited by this section is in or affects
interstate or foreign commerce.’” App. 50–51 (quoting 18
U.S.C. § 1028(c)(3)(A)). Although we agree with the Court’s
ultimate conclusion, this line of reasoning is problematic.

It is true that the Federal Rules of Criminal Procedure
allow “[a] count [to] incorporate by reference an allegation
made in another count.” Fed. R. Crim. P. 7(c)(1). But “any
such incorporation must be expressly done.” United States v.
Knowles, 29 F.3d 947, 952 (5th Cir. 1994) (finding a count
defective where “the count that charged [the defendant] with
possession of a firearm in a school zone, did not expressly
refer to the interstate commerce nexus alleged” in a separate
count); see also United States v. Knox Coal Co., 347 F.2d 33,
38 (3d Cir. 1965) (“[U]nless the charging part of a conspiracy
count specifically refers to or incorporates by reference
allegations which appear under the heading of the overt acts,
resort to those allegations may not be had to supply the
insufficiency in the charging language itself.”); United States
v. Fulcher, 626 F.2d 985, 988 (D.C. Cir. 1980) (“Each count
in an indictment is regarded as if it was a separate indictment.
Each count must stand on its own, and cannot depend for its
validity on the allegations of any other count not specifically

22
incorporated.”); 11A Cyc. of Federal Proc. § 42:105 (3d ed.)
(“[A]n incorporation by reference must be clear, full, and
definite and must be expressly done. In addition, the matter
incorporated by reference is limited to what is embraced
within the reference clause.”).

Here, the indictment’s reference to the drug and
firearm charges against Stevenson is insufficiently specific to
incorporate the interstate commerce element into the fraud
count. Indeed, we rejected a similar incorporation theory in
United States v. Spinner. Spinner was charged with access
device fraud in count one of an indictment and with bank
fraud in count two. 180 F.3d 514, 515 (3d Cir. 1999). Both
offenses included an interstate commerce element, but the
government failed to allege that element in the first count. Id.
We rejected the argument that count one could absorb the
element from count two by intra-indictment osmosis, holding
that the indictment’s failure to allege all the elements of bank
fraud required reversal of Spinner’s access-device fraud
conviction. Id. at 516. Accordingly, the District Court erred to
the extent that it merely relied on the fact that other charges in
the indictment require a nexus to interstate commerce to
satisfy the independent requirement that the false
identification charge allege such a connection.

Nevertheless, we read the indictment here to include
the interstate commerce element of § 1028. The false
identification count’s reference to Stevenson’s use of a
Georgia identification document in Pennsylvania with the
intent to further drug and firearm offenses alleges an effect on
interstate commerce by “necessary implication.” Moolenaar,
133 F.3d at 249; see also United States v. Harms, 442 F.3d
367, 372 (5th Cir. 2006) (explaining that so long as an
indictment as a whole “fairly imports” an element, “an exact

23
recitation of [that] element . . . is not required”). Inherent in
the indictment’s description of Stevenson’s actions is
interstate commercial activity: the use of a fake Georgia
drivers’ license in Pennsylvania to further drug and firearm
crimes. For this reason, we hold that the false identification
count sufficiently communicated the interstate commerce
element to the grand jury and informed Stevenson of the
nature of the charges against him.

2

Even had the indictment failed to allege the interstate
commerce element of the false identification offense, the
error would have been harmless. Although we previously
characterized a similar omission as a “fundamental defect” in
an indictment that deprived us of jurisdiction and was not
susceptible to harmless error review, Spinner, 180 F.3d at
516, that view is no longer valid. As we shall explain, an
indictment that fails to include all essential elements of the
charged offense is subject to harmless error review when the
issue was raised in the trial court.

Our opinion that defective indictments required
automatic reversal rested on two propositions: (1) that such
defects are jurisdictional; and (2) that they constitute
structural flaws not amenable to harmless error review. See
id. at 515–16. The Supreme Court explicitly rejected the first
proposition in United States v. Cotton. Evaluating an
indictment that failed to include an Apprendi sentencing
factor—a flaw the Fourth Circuit had deemed jurisdictional—
the Court reversed, holding that “defects in an indictment do
not deprive a court of its power to adjudicate a case.” 535
U.S. 625, 630 (2002).

24
 As for the second proposition, the fact that a defect in
an indictment is not jurisdictional does not answer the
question of how we should review timely challenges to an
indictment’s sufficiency. See United States v. Prentiss, 256
F.3d 971, 983 (10th Cir. 2001) (en banc), overruled on other
grounds as recognized by United States v. Sinks, 473 F.3d
1315, 1321 (10th Cir. 2007). And the Supreme Court has
reserved for later consideration the issue “whether the
omission of an element of a criminal offense from a federal
indictment can constitute harmless error.” United States v.
Resendiz-Ponce, 549 U.S. 102, 104 (2007). But the Court’s
guidance in analogous circumstances leads us to conclude
that harmless error review applies because defective
indictments do not constitute “structural” error.

Structural error “deprive[s] defendants of ‘basic
protections’ without which ‘a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence . . . and no criminal punishment may be regarded
as fundamentally fair.’” Neder v. United States, 527 U.S. 1,
8–9 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577–78
(1986)). Such errors, which require automatic reversal, occur
“only in a very limited class of cases.” Johnson v. United
States, 520 U.S. 461, 468 (1997). Moreover, “if the defendant
had counsel and was tried by an impartial adjudicator, there is
a strong presumption that any other errors that may have
occurred are subject to harmless-error analysis.” Rose, 478
U.S. at 579 (emphasis added). Stevenson cannot overcome
that strong presumption in this case.

The Supreme Court’s opinion in Neder is essentially
dispositive here. In Neder, the Court held that a trial court’s
failure to instruct a petit jury on every element of the charged
offense “does not necessarily render a criminal trial

25
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence” and is hence subject to harmless-error
review. 527 U.S. at 9. That rule applies equally to the grand
jury context because “a defendant’s right to have a petit jury
find each element of the charged offense beyond a reasonable
doubt is no less important than a defendant’s right to have
each element of the same offense presented to the grand
jury.” Prentiss, 256 F.3d at 984. Nothing in the Supreme
Court’s precedents indicates otherwise. See, e.g, Cotton, 535
U.S. at 634 (suggesting that the Fifth Amendment grand jury
right and the Sixth Amendment petit jury right both serve
“vital function[s]” and should be protected equally). To the
contrary, the Court “has classified only two types of grand
jury related errors as structural, both involving discrimination
in the selection of grand jurors.” Prentiss, 256 F.3d at 983
(citing cases). “Otherwise, the Court has ‘see[n] no reason not
to apply [harmless error analysis] to error, defects,
irregularities or variances occurring before a grand jury just
as [it has] applied it to such error occurring in the criminal
trial itself.” Id. at 983–84 (quoting United States v. Mechanik,
475 U.S. 66, 71–72 (1986) (some internal quotation marks
omitted)).

We recognize that the Court of Appeals for the Ninth
Circuit has persisted in the view that a defective indictment
requires reversal. See United States v. Omer, 395 F.3d 1087,
1088 (9th Cir. 2005). Six judges of that Court have disagreed
with that decision, which may indicate that the rule is on
shaky ground even in the lone circuit that still adheres to it.
See United States v. Omer, 429 F.3d 835 (9th Cir. 2005)
(Graber, J., dissenting from denial of rehearing en banc)
(opining that an “absolute rule” of “automatic reversal of any
conviction in which the defendant timely, and correctly,

26
objected that an element of the crime was missing from the
indictment . . . . makes no sense”). But irrespective of
whether Judge Graber’s dissent from the denial of rehearing
en banc portends a change of course by the Ninth Circuit, we
agree with at least six United States Courts of Appeals that
harmless error review applies when an indictment’s omission
of an essential element is challenged in district court.11 See
United States v. Allen, 406 F.3d 940, 945 (8th Cir. 2005);
United States v. Robinson, 367 F.3d 278, 285 (5th Cir. 2004);
United States v. Higgs, 353 F.3d 281, 304–06 (4th Cir. 2003);
United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576,
580 (6th Cir. 2002); Prentiss, 256 F.3d at 981; United States
v. Corporan-Cuevas, 244 F.3d 199, 202 (1st Cir. 2001).

The test for harmless error is set forth in Rule 52(a) of
the Federal Rules of Criminal Procedure: “[a]ny error, defect,
irregularity, or variance that does not affect substantial rights
must be disregarded.” This requires us to determine whether
“beyond a reasonable doubt . . . the error complained of did
not contribute to the verdict obtained.” Chapman v.
California, 386 U.S. 18, 24 (1967); see also Delaware v. Van
Arsdall, 475 U.S. 673, 681 (1986) (“An otherwise valid
conviction should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitutional
error was harmless beyond a reasonable doubt.”). To do so
we ask: “(1) whether the indictment provided [Stevenson]

11
Because it is inconsistent with the Supreme Court’s
treatment of defective indictments and jury instructions in
Cotton and Neder, we are not bound by our decision in
Spinner to the extent that it treated an indictment’s omission
of an essential element as a jurisdictional defect and structural
error.

27
sufficient notice of the crime with which he had been charged
and (2) whether [Stevenson] was harmed by losing the right
to have the public determine whether there existed probable
cause to charge the missing element.” United States v.
Dentler, 492 F.3d 306, 310–11 (5th Cir. 2007) (internal
quotation marks omitted).

First, although the count at issue did not explicitly
reference “interstate commerce,” it nevertheless provided
more than adequate statutory and factual detail to provide
Stevenson notice of the charge against which he was to
defend. See United States v. Mallen, 843 F.2d 1096, 1103 (8th
Cir. 1988). Nor has Stevenson made any claim to the
contrary.

We also resolve the second question in the
Government’s favor. To determine whether Stevenson was
harmed by losing the right to have the grand jury make a
probable cause determination regarding the interstate
commerce element, we consider “whether, on the basis of the
evidence that would have been available to the grand jury,
any rational grand jury presented with a proper indictment
would have charged that [Stevenson] committed the offense
in question.” Dentler, 492 F.3d at 311. Considering the same
evidence as that which was available to the grand jury, the
petit jury found Stevenson guilty after receiving explicit
instruction as to the facts necessary to convict Stevenson on
the interstate commerce element beyond a reasonable doubt.
This verdict strongly supports the conclusion that a rational
grand jury would have probable cause to charge Stevenson
with each and every element of the fraudulent identification
charge. See United States v. Robinson, 367 F.3d 278, 289 (5th
Cir. 2004) (noting that “the petit jury’s unanimous findings”
are “at a minimum, persuasive evidence of how a grand jury

28
would find”). Indeed, especially in light of the expansive
understanding of what constitutes “interstate commerce,” it is
hard to fathom how any rational person could conclude that a
defendant who used an out-of-state false identification in
furtherance of an interstate drug operation had probably not
done so “in or affect[ing] interstate . . . commerce.” 18 U.S.C.
§ 1028(c)(3)(a). Accordingly, to the extent that the indictment
was deficient, Stevenson suffered no harm and the District
Court did not err in denying his motion to dismiss that count
of the indictment.

C

We turn next to Stevenson’s Fourth Amendment
claims. Stevenson filed a motion to suppress evidence
acquired in the stop of his vehicle and the subsequent search
of his residence. He claims that the stop was not supported by
reasonable suspicion and that the affidavit in support of the
search warrant for his residence failed to establish probable
cause. We review the reasonable suspicion determination de
novo, Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir. 2003),
and the probable cause assessment for whether the
“magistrate had a ‘substantial basis’ for concluding that the
affidavit supporting the warrant established probable cause,”
United States v. Miknevich, 638 F.3d 178, 181 (3d Cir. 2011).

1

It is well established that a law enforcement officer
conducting a traffic stop “may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal
activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123
(2000). The Supreme Court has not reduced “reasonable

29
suspicion” to a “neat set of legal rules,” preferring instead a
“totality of the circumstances” approach focused on “whether
the detaining officer has a particularized and objective basis
for suspecting legal wrongdoing.” United States v. Arvizu,
534 U.S. 266, 273–74 (2002) (internal quotation marks
omitted). “This process allows officers to draw on their own
experience and specialized training to make inferences from
and deductions about the cumulative information available to
them that might well elude an untrained person.” Id. at 273
(internal quotation marks omitted). Suspicion must be based
on more than a “mere hunch” to be reasonable, but “the
likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard.” Id. at
274 (internal quotation marks omitted).

The record supports the District Court’s conclusion
that there was reasonable suspicion to stop Stevenson’s
vehicle. Prior to the stop, the authorities had identified Hood
Promo as the hub of a heroin ring by conducting several
controlled drug purchases there and by identifying several
suspected members of the conspiracy, including a man going
by the street name “Inf” or “Infinite.” Law enforcement had
learned that “Inf” was a 5’6” black male in his late twenties
and his real name was probably Terrell Stevenson. The agents
also knew that “Inf”: drove a gray BMW, was reputed to be
responsible for heroin distribution in the Wilkes-Barre area,
and was a rapper in the group Currency Club. When those
facts are considered in light of the fact that the State of New
York had issued a warrant for Stevenson’s arrest, the agents
were well justified in stopping the gray BMW to determine
whether “Inf”/Stevenson was behind the wheel. See United
States v. Cortez, 449 U.S. 411, 417 (1981) (noting that “the

30
whole picture” must be taken into account in determining
reasonable suspicion and that “[t]he process does not deal
with hard certainties, but with probabilities”). Thus, the
District Court did not err when it denied Stevenson’s motion
to suppress physical evidence and testimony relating to the
stop of his vehicle and his use of false identification
documents.

2

Stevenson next claims that the affidavit of probable
cause in support of the warrant to search his residence was
insufficient. In reviewing this affidavit, our role “is simply to
ensure that the magistrate had a ‘substantial basis for . . .
conclud[ing]’ that probable cause existed.” Illinois v. Gates,
462 U.S. 213, 238–39 (1983) (quoting Jones v. United States,
362 U.S. 257, 271 (1960)).

The affidavit submitted by Special Agent Davis
provided extensive information of drug activity at Hood
Promo and sufficiently connected Stevenson to the illegal
conduct. It detailed: physical surveillance observing
Stevenson transporting unknown objects to and from Hood
Promo; the fact that Stevenson was wanted in New York on
drug-related charges; a reliable confidential source’s
identification of Stevenson as a Hood Promo heroin dealer;
and phone conversations and text messages between
Stevenson, Thomas, and Bush that—while “cryptic and
vague,” in the words of the District Court, App. 19—were
suggestive of drug activity.

Stevenson claims most of this is “guilt by association,”
and that the affidavit fails to adequately set forth the
confidential informant’s basis of knowledge for his claim that

31
Stevenson was involved in the Hood Promo heroin trafficking
scheme. Stevenson Br. 38. Although the informant’s basis of
knowledge is cursory, the information provided was
“corroborated through independent investigation” of Hood
Promo, Thomas, Bush, Stevenson, and others. See, e.g.,
United States v. Yusuf, 461 F.3d 374, 384 (3d Cir. 2006).
Because the totality of the circumstances described in the
affidavit provided a substantial basis for the magistrate to
conclude that there was a “fair probability that contraband or
evidence of a crime” would be found at Stevenson’s
residence, Gates, 462 U.S. at 238, the District Court did not
err when it denied Stevenson’s suppression motion.

D

Stevenson also claims he was deprived of a fair trial
when the judge “vouched” for a Government witness. During
the defense’s cross-examination of Government witness
William Nelson (the ringleader of the Hood Promo heroin
operation), the following exchange occurred:

Q. . . . All right, now, let’s talk about your
prior record. You have a felony conviction,
right?

A. Twenty-four years ago. Not admissible,
and it can’t be charged to me and I can’t be
given an enhancement. It was when I was 18
years old. So that’s irrelevant, that’s a moot
point right now, sir, why are you bringing that
up?

Q. Is that moot?

32
 A. Yes, it is moot.

THE COURT: Stop. Mr. Nelson, take it
down a notch.

THE WITNESS: I’m gonna take it
down, but he’s trying to muddy the water.
I’m being honest here.

THE COURT: I know you are. But let
him ask his question.

App. 617–18. The defense did not object to the Court’s
remark, so we review it only for plain error. See Fed. R. Crim.
P. 52(b).

Considering the entire record in context, we conclude
that the District Court did not vouch for Nelson. See United
States v. Olgin, 745 F.2d 263, 269 (3d Cir. 1984) (“A
potentially prejudicial comment cannot be evaluated in
isolation, out of context.”). Faced with a witness’s rising
temper under the heat of counsel’s attempt to impeach him
with a decades-old conviction, the judge appropriately
stepped in to cool passions. The judge’s pacifying response “I
know you are” to Nelson’s flustered protestation that he was
“being honest” and that defense counsel was trying to
“muddy the water,” App. 618, “should not be literally
interpreted to mean that [the judge] would . . . under any
circumstances believe anything that [Nelson] said.” United
States v. Twomey, 806 F.2d 1136, 1143 (1st Cir. 1986). In our
view, no reasonable juror would have viewed the judge as
actually vouching for the witness’s testimony. Although
“[t]here is no bright line separating remarks that are
appropriate from remarks that may unduly influence a jury,”

33
Olgin, 745 F.2d at 269, the context of the exchange in this
case shows that the trial judge’s comment carried no improper
sway.

The four-factor “sliding scale” test we articulated in
Olgin to assess the propriety of a judge’s comments supports
our conclusion. 745 F.2d at 268. First, the comment lacked
“materiality” because the judge was not actually speaking to
Nelson’s credibility or in any other way opining on matters
“central to the defense.” Id. at 269 (citing United States v.
Anton, 597 F.2d 371, 374 (3d Cir. 1979) (reversible error
where judge made “flat statement of disbelief of the
testimony of the witness”)). Nor was the comment of an
“emphatic or overbearing nature” such that the jury might
accept it “as controlling”—it was casual and palliative more
than anything else. United States v. Gaines, 450 F.2d 186,
189 (3d Cir. 1971). Third, if the comment had crossed the
line, any error would have been ameliorated by the judge’s
thorough instructions, which emphasized to the jury, inter
alia, that it “should not take anything [the judge] may have
said or done during the trial as indicating what [he] think[s] of
the evidence or what [he] think[s] about what [the] verdict
should be.” App. 1151; Olgin, 745 F.2d at 269. Finally, our
review of the Court’s well crafted “jury instruction as a
whole” confirms what common sense already suggests: the
judge’s remark had no prejudicial effect on Stevenson. Olgin,
745 F.2d at 269.

34
 E

Stevenson’s final argument is that the sentence
imposed by the District Court was procedurally
unreasonable.12 We disagree.

Stevenson argues that the District Court committed
procedural error by (1) treating the Guidelines as mandatory
in contravention of United States v. Booker, 543 U.S. 220
(2005); (2) failing to give meaningful consideration to the
sentence disparities between Stevenson and his co-
defendants; and (3) failing to give meaningful consideration
to the § 3553(a) sentencing factors.

His first point relies on the judge’s statement to
Stevenson at sentencing that he had enough prior convictions
to qualify as a career offender under the Guidelines and that
this was “significant . . . because it changes the way the law
looks at you and it changes the way the law looks at you in a
manner that I, in turn, must abide by.” App. 1571. Stevenson
quotes this statement for the proposition that the Court

12
We review Stevenson’s sentence under an abuse of
discretion standard. United States v. Tomko, 562 F.3d 558,
565 (3d Cir. 2009) (en banc). The party challenging the
sentence bears the burden of proving its unreasonableness.
United States v. King, 454 F.3d 187, 194 (3d Cir. 2006). For
its sentence to have been “procedurally” reasonable, the
District Court must have correctly calculated the Guidelines
range, given meaningful consideration to the § 3553(a)
factors, and adequately explained the chosen sentence. Gall v.
United States, 552 U.S. 38, 51 (2007).

35
mistakenly thought itself bound by the Guidelines. Once
again, context proves otherwise.

“District Courts engage in a three step process when
imposing a sentence,” the first being that “the defendant’s
guideline range is calculated.” United States v. Larkin, 629
F.3d 177, 195 (3d Cir. 2010). This is the duty the judge was
referring to, which he performed just sentences later,
explaining: “that’s why you’re facing a total offense level
here of 37 and a criminal history category of 6 because you
are a Career Offender here.” App. 1571. The Court was
required to make this determination before moving on to
consider any departure motions (step two) and the § 3553(a)
factors (step three), and thus committed no error. See Larkin,
629 F.3d at 195.

Stevenson’s second procedural argument fares no
better. The District Court thoughtfully considered
Stevenson’s request for a downward departure from his high
Guidelines range based on his co-defendants’ substantially
lesser sentences and reasonably decided against it. In
particular, the Court found the disparities understandable in
light of the contrast between the co-defendants’ lower
criminal history categories and acceptance of responsibility
versus Stevenson’s career offender status, risk of recidivism,
and pointed lack of remorse. This assessment provided more
than sufficient consideration of Stevenson’s departure motion.
Cf. United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006).

Finally, Stevenson’s contention that the District Court
failed to give meaningful consideration to the § 3553(a)
sentencing factors is belied by the record. The only argument
Stevenson has raised in this regard is that the District Court
did not account for his “disadvantaged upbringing and lack of

36
guidance as a youth.” Stevenson Br. 52. In fact, the District
Court gave careful consideration to Stevenson’s “difficult
childhood” and reasonably concluded that a within-
Guidelines sentence was warranted in light of Stevenson’s
life of crime. App. 1570–72. Because the record shows that
the District Court meaningfully considered all relevant
sentencing factors, we reject Stevenson’s contention that his
sentence was unreasonable.

III

All of the arrows in Stevenson’s appellate quiver miss
the mark, though one grazes its target. The District Court did
not err in dismissing the first superseding indictment without
prejudice, in denying his motion to dismiss the false
identification count of the indictment, in denying his
suppression motions, in making a statement obviously geared
toward pacifying an emotional witness at trial, or in
sentencing Stevenson to 360 months’ imprisonment.
Accordingly, we will affirm.

37