NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3894
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UNITED STATES OF AMERICA
v.
ROBERT RALPH KORBE,
Appellant
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Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Nos. 2-08-cr-00365-016,
2-09-cr-00056-002 and 2-10-cr-00091-001)
District Judge: Honorable Terrence F. McVerry
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Submitted Under Third Circuit LAR 34.1(a)
November 17, 2011
Before: RENDELL, AMBRO and NYGAARD, Circuit Judges
(Opinion Filed: November 21, 2011)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Robert Ralph Korbe appeals a judgment incorporating a sentence of 300 months‟
imprisonment for convictions on drug, mail fraud, and firearm charges. Korbe‟s
Sentencing Guidelines range was 188 to 235 months, subject to a statutory mandatory
minimum sentence of 240 months for the firearm offenses. The District Court sentenced
Korbe to 300 months in prison, 65 months above the upper bound of the Guidelines range
and 60 months above the mandatory minimum. On appeal, Korbe argues that this
upward variance was unreasonable.1 We will affirm.2
Because the facts and procedural history are well known to the parties and the
Court, we need not restate them here. Our review of Korbe‟s sentence proceeds in two
steps. “First, we must ensure that the district court did not commit a significant
procedural error in arriving at its decision, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing adequately to explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.” United States v. Brown, 595
F.3d 498, 526 (3d Cir. 2010) (internal quotation marks omitted). “Second, if we
determine that there has not been a significant procedural error, we review the ultimate
sentence imposed to determine if it was substantively reasonable under an abuse of
discretion standard.” Id.
1
The government moved to dismiss Korbe‟s appeal based on an appeal waiver Korbe
entered into in connection with a plea agreement. Because that agreement specifically
reserved to Korbe the right to take a direct appeal from a sentence that “unreasonably
exceeds the guideline range determined by the Court under the Sentencing Guidelines,”
and Korbe‟s appeal argues only that his above-guideline sentence was unreasonable, we
will deny the motion to dismiss.
2
The District Court exercised jurisdiction under 18 U.S.C. § 3231. Our jurisdiction
arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
The District Court‟s sentencing decision in this case was neither procedurally
flawed nor substantively unreasonable. The extent to which Korbe challenges his
sentence on procedural grounds is unclear — he does not argue that the District Court
calculated the Guidelines range incorrectly, that it treated the Guidelines as mandatory or
relied on clearly erroneous facts, or even that it failed to consider any of the § 3553(a)
factors. But he does suggest that the District Court did not adequately explain the basis
for its upward variance in light of the § 3553(a) factors. That is not the case. In a lengthy
and thorough discussion, the District Court expressly considered “the nature and
circumstances of the offense”; Korbe‟s “history and characteristics,” including his
personal and family circumstances, health, skills, and employment; Korbe‟s “extensive
criminal background with drugs, guns and violent behavior”; the need to protect the
public from Korbe‟s criminal activity; the opportunity to provide Korbe with substance
abuse treatment and training in the hope that he might someday “become a law-abiding
member of the community”; and potential disparities between Korbe‟s sentence and the
sentences of his co-defendants in the drug conspiracy. It carefully explained that the
severity of Korbe‟s sentence was justified by the number of crimes for which he was
sentenced, the seriousness of those offenses, and Korbe‟s underlying history of criminal
conduct. We discern no procedural error here.
Given the “„due deference‟” we afford the District Court‟s application of the
§ 3553(a) factors, we also cannot conclude that “no reasonable sentencing court would
have imposed the same sentence on [Korbe] for the reasons the district court provided,”
as we must to find Korbe‟s sentence substantively unreasonable. United States v. Tomko,
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562 F.3d 558, 567-68 (3d Cir. 2009) (en banc). As the District Court observed, Korbe
was an “active, long-term and ongoing” participant in “a large scale network of drug
distribution.” He had shown no remorse and refused to abandon his criminal lifestyle
after numerous previous arrests and convictions. This pattern continued up through the
arrest on the charges in this case — rather than surrendering when law enforcement
agents arrived at his house to execute an arrest warrant, Korbe sought to destroy his stash
of drugs and fled. Under these circumstances, the District Court acted well within its
discretion in imposing a sentence above the Guideline range and the statutory minimum.
The extent of the District Court‟s upward variance also was not substantively
unreasonable. The 5-year increase was appropriate in light of the facts, and the resulting
25-year sentence fell well below the statutory maximum sentence of life imprisonment.
Finally, we reject Korbe‟s contention that the District Court improperly took into
account the circumstances of his arrest — during which Korbe‟s wife shot and killed an
FBI agent — in determining his sentence. The record affirmatively establishes that
Korbe‟s sentence was not based in any way on Korbe‟s wife‟s actions. Although the
District Court noted that Korbe‟s actions on the morning of his arrest “set the stage” for
the agent‟s death, it emphasized that Korbe was “neither charged with nor . . . sentenced
for” that conduct and specifically advised Korbe that he was not “sentenced for the
shooting and death of FBI Special Agent Samuel Hicks.”
For the foregoing reasons, we will affirm the judgment of the District Court.
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