NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-1250
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UNITED STATES OF AMERICA
v.
DORIAN WHITEHEAD,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. Action No. 3-16-cr-00072-001)
District Judge: Honorable James M. Munley
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 13, 2018
Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges
(Opinion filed: March 23, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
KRAUSE, Circuit Judge.
Appellant Dorian Whitehead appeals the District Court’s imposition of a 51-month
sentence following her conviction for aiding and abetting two armed bank robberies on
the grounds that the sentence was procedurally incorrect and substantively unreasonable.
For the reasons that follow, we will affirm.
I. Background
Whitehead pleaded guilty to aiding and abetting two armed bank robberies, in
violation of 18 U.S.C. § 2113(d), by, inter alia, renting a car for surveillance purposes,
accompanying the robbers to surveil the bank, listening to a police scanner from a remote
location to alert them of any police activity regarding the robberies, and allowing the
robbers to store robbery tools in her basement.
For purposes of sentencing under the United States Sentencing Guidelines
(“U.S.S.G.”), the Presentence Investigation Report (“PSR”) recommended that
Whitehead’s offense level reflect a 3-level reduction for acceptance of responsibility (to
which the government agreed), pursuant to U.S.S.G. § 3E1.1(a)-(b), and a 2-level
reduction for being a minor participant in the offense (to which the government also
agreed), pursuant to U.S.S.G. § 3B1.2(b), yielding a total offense level of 28 and a
Guidelines range of 78 to 97 months’ incarceration.
At sentencing, in addition to these reductions, the District Court granted the
government’s motion for a further 6-level reduction based on Whitehead’s “substantial
assistance,” pursuant to U.S.S.G. § 5K1.1. Accordingly, Whitehead’s total offense level
was reduced from 28 to 22, resulting in a Guidelines range of 41 to 51 months’
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imprisonment. After the District Court imposed a 51-month sentence, Whitehead timely
appealed.
II. Discussion1
On appeal, Whitehead argues her 51-month sentence was both procedurally
incorrect and substantively unreasonable. Neither argument is persuasive.
As to the procedures employed by the District Court, while Whitehead contends it
committed plain error by failing to meaningfully consider the relevant 18 U.S.C. §
3553(a) factors, we find no error, let alone plain error.2 Before imposing sentence, the
District Court heard Whitehead’s arguments as to why a further reduction was warranted,
and it then explained that, “in passing sentence on Ms. Whitehead,” it had “taken into
consideration . . . the letters of support . . . written on her behalf,” as well as “what Ms.
Whitehead said here today.” JA 184. The District Court also observed that “the sentence
. . . impose[d] and the government’s statements and motions for [a] downward departure”
took into consideration “all of the factors, including the nature and seriousness of the
offense, the defendant’s history, characteristics, [and] the kind of sentences that are
1
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291.
2
Because Whitehead did not raise an objection to the District Court’s
consideration of the § 3553(a) factors at sentencing, we review for plain error, United
States v. Flores-Mejia, 759 F.3d 253, 256, 259 (3d Cir. 2014), which requires
demonstrating: (1) that the court erred, (2) that the error was plain, and (3) that it
“affect[ed] substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67 (1997)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). The § 3553(a) factors
include, in pertinent part, “the nature and circumstances of the offense and the history and
characteristics of the defendant.” 18 U.S.C. § 3553(a).
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available by the sentencing ranges[.]” JA 184-85. Specifically, the District Court found
that the robberies were “very serious offenses,” JA 185, that Whitehead’s “conduct in this
[was] terrible,” JA 186, and that even characterizing Whitehead’s role as minor was
“questionable,” JA 187. Finally, the District Court noted that the Guidelines range had
been significantly reduced because the government had “lea[n]ed over backwards” for
her by moving for downward departures that the Court granted. JA 187. As the Supreme
Court has held that a sentencing judge’s “brief” statement of reasons is “legally
sufficient” as long as the record demonstrates that the judge “has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority,” Rita v. United States, 551 U.S. 338, 356 (2007), the District Court’s statement
of reasons makes clear it did not commit procedural error. To the contrary, it considered
and adequately addressed Whitehead’s arguments in support of an additional reduction to
her sentence, and it provided a “reasoned basis” for rejecting them.3 Id.
Nor was the 51-month sentence substantively unreasonable. Because the District
Court sentenced Whitehead to a properly-calculated and within-Guidelines sentence of 51
months, it is presumed to be reasonable. See Rita, 551 U.S. at 364 (Stevens, J.,
concurring) (permitting “reviewing courts [to] presume that a sentence within the
3
Whitehead’s alternative argument that her sentence was procedurally
unreasonable because the District Court made two clearly erroneous factual findings
lacks support in the record. Consistent with the District Court’s findings, the record
reflects that Whitehead did rent a car that was used in furtherance of the second robbery,
and was, in fact, present during part of the trip with the robbers “out to [the bank
employee’s house] . . . so that she could be threatened at the time of the robbery.” JA
186.
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advisory Guidelines is reasonable”). Moreover, this Guidelines range was significantly
lower than the 78 to 97-month range that was recommended in the PSR due to the
District Court’s willingness to depart downwards for Whitehead’s substantial assistance
to the government. Accordingly, the District Court did not impose a substantively
unreasonable sentence; rather, it properly exercised its discretion “to determine the
appropriate sentence in light of the particular circumstances of the case.” United States v.
Tomko, 562 F.3d 558, 561 (3d Cir. 2009).
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.
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