NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4096
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UNITED STATES OF AMERICA
v.
ERICA NEALY,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 2-97-cr-00031-001)
District Judge: Hon. William H. Walls
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Submitted Pursuant to Third Circuit LAR 34.1(a)
October 4, 2011
BEFORE: MCKEE, Chief Judge, VANASKIE and COWEN , Circuit Judges
(Filed: November 3, 2011)
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OPINION
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COWEN, Circuit Judge.
Erica Nealy appeals from the judgment of sentencing entered against her by the
United States District Court for the District of New Jersey. For the following reasons, we
will affirm.
I.
On July 18, 1996, Nealy attempted to enter the United States at the Newark airport
with 3.59 kilograms of marijuana in the form of hashish oil taped to her thighs. Nealy
subsequently pled guilty to importing a controlled substance in violation of 21 U.S.C. §§
952(a) and 960, and was released on bail pending sentencing. When the sentencing
hearing took place on April 25, 1997, however, she failed to appear and a warrant was
issued for her arrest. Nealy remained at large for the next thirteen years, until January 9,
2010, when she was arrested for shoplifting in Arizona. She was then transferred back to
New Jersey.
Prior to sentencing, Nealy informed the probation office that the information she
had provided in 1997—including her identity—was false. Nealy explained that her real
name was “Karlena Angelina Dawson,” that she was a Jamaican citizen, and that she had
failed to appear for her 1997 court date because she needed to care for her newly born
disabled child. Nealy also stated that she had only agreed to import drugs so that she and
her three children could have the means to get away from her abusive husband.
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The Presentence Investigation Report (“PSR”) calculated Nealy’s base offense
level at 26. Although she qualified for a two-point reduction for being a “minor
participant” in her crime, see U.S.S.G. § 3B1.2, she was also given a two-point
enhancement for obstruction of justice, see U.S.S.G. § 3C1.1. Because Nealy had
absconded from authorities, the PSR determined that she was not eligible for an
acceptance of responsibility departure under U.S.S.G. § 3E1.1. Given that she had no
prior criminal history, she was assigned a criminal history category of I, which resulted in
an advisory Guidelines range of 63 to 78 months of imprisonment.
At sentencing, Nealy objected to the denial of a two-point reduction for acceptance
of responsibility. She argued that she readily accepted responsibility for the crime and
that she failed to appear at sentencing only because she was obligated to care for her
newborn, disabled child. Nealy also moved to reduce her sentence pursuant to the “safety
valve provision,” § 5C1.2 of the Guidelines. See 18 U.S.C. § 3553(f). In addition, she
advocated for a below-Guidelines sentence based on the § 3553(a) factors, emphasizing
her family obligations, her abusive relationship with her husband, her difficult
upbringing, and the fact that she was facing deportation. The government opposed
Nealy’s challenges to the calculation of her Guidelines range as well as her request for a
downward variance, pointing out that her thirteen-year absence was not justified by her
responsibility to care for a child in 1997, that she did not provide truthful information to
the government about her offense conduct in 1997, and that the information she provided
in 2010 could not be verified.
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After considering both parties’ arguments, the District Court rejected Nealy’s
requests for a reduction in her offense level as well as her request for a variance. The
court sentenced Nealy to 63 months of imprisonment, the bottom of the advisory
Guidelines range.
II.
We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291. When reviewing a sentence on appeal, we first ensure that the sentencing
court did not commit a serious procedural error, “such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence—including an explanation for
any deviation from the Guidelines range.” United States v. Tomko, 562 F.3d 558, 567
(3d Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 51 (2007). We then “review
the substantive reasonableness of the sentence under an abuse-of-discretion standard,”
while keeping in mind that, “[a]s long as a sentence falls within the broad range of
possible sentences that can be considered reasonable in light of the § 3553(a) factors, we
must affirm.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008).
III.
Nealy argues that the District Court made three errors at sentencing by: (1) failing
to apply a two-point reduction for acceptance of responsibility pursuant to U.S.S.G. §
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3E1.1(a); (2) denying her request for a “safety valve” departure pursuant to § 3553(f); and
(3) failing to properly consider all of the § 3553(a) factors. We disagree.
First, the District Court did not err in determining that Nealy was not entitled to a
two-point reduction for acceptance of responsibility. Section 3E1.1 permits a two-level
decrease if a defendant “clearly demonstrates acceptance of responsibility for [her]
offense.” U.S.S.G. § 3E1.1(a). Such a decrease is generally not available, however, for a
defendant who has received an obstruction of justice enhancement because obstructionist
behavior “ordinarily indicates that the defendant has not accepted responsibility for his
criminal conduct.” See id., cmt. n. 4. Although the Guidelines recognize that there may
be “extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply,”
U.S.S.G. § 3E1.1(a), cmt. n. 4, the District Court reasonably determined that Nealy’s
reasons for absconding were not so extraordinary as to justify a reduction in her offense
level; as the District Court explained, while a child’s medical condition might be
considered justification for “one, two, three years” of absence from the court, “there is no
excuse after 2000, and she was not apprehended until ten years into this new century,
2010.” (JA28.)
Second, the District Court did not err in denying Nealy safety valve relief under 18
U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. A defendant may receive a two-point reduction
in her offense level if, among other things, she establishes that she “has truthfully
provided to the Government all information and evidence [she] has concerning the
offense . . . .” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). The government opposed
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Nealy’s motion on the ground that she had failed to satisfy this criterion, noting that she
had provided authorities with a false identity upon her arrest, that much of the
information she provided in 1997 about her background and circumstances surrounding
the crime was—by her own admission—also false, and that, although she now claims that
she eventually provided truthful information, her new version of events remains largely
unverifiable. The District Court found the government’s argument persuasive, explaining
that it had “little trust as to what [Nealy] says and in what she does.” (JA36.) We see no
error in the District Court’s determination that Nealy failed to show that she merited
safety valve relief.
Finally, the arguments presented by Nealy that the District Court’s sentences were
procedurally and substantively unreasonable are unavailing. Although Nealy contends
that the court failed to meaningfully consider the mitigation evidence she offered in
support of a below-Guidelines sentence—namely, her disabled child, her abusive
relationship with her husband, her difficult childhood, and the fact that she was facing
deportation—we are convinced that the District Court adequately considered these
arguments in mitigation along with the other § 3553(a) factors.1 See United States v.
Rita, 551 U.S. 338, 358 (2007) (“In the present case the sentencing judge’s statement of
reasons was brief but legally sufficient . . . . The record makes clear that the sentencing
1
To the extent that Nealy argues that the District Court precluded her attorney from
presenting argument in support of a variance under § 3553(a), we agree with the
government that the court was likely referring to arguments concerning § 3553(f), the
safety valve provision, and not subsection (a), when it indicated that it would “not listen[]
to any other 3553 treatment.” (JA37.)
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judge listened to each argument.”); United States v. Lessner, 498 F.3d 185, 203 (3d Cir.
2007) (“A sentencing court need not make findings as to each factor if the record
otherwise makes clear that the court took the factors into account.”) Therefore, the
District Court did not procedurally err. Furthermore, because it cannot be said that “no
reasonable sentencing court would have imposed the same sentence on [Nealy] for the
reasons the district court provided[,]” Tomko, 562 F.3d at 568, Nealy has not shown that
her sentence was substantively unreasonable.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentencing.
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