USA v. John McElroy

Filing

NOT PRECEDENTIAL OPINION Coram: VANASKIE, COWEN and VAN ANTWERPEN, Circuit Judges. Total Pages: 5. Judge: COWEN Authoring. We Grant the Government's Motion. We Will enforce McElroy's waiver and summarily affirm his sentence.

Case: 14-1153

Document: 003111869019

Page: 1

Date Filed: 02/05/2015

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 14-1153
_______________
UNITED STATES OF AMERICA
v.
JOHN J. MCELROY,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-11-cr-00616-001)
District Judge: Hon. Lawrence F. Stengel
_______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 9, 2014
BEFORE: VANASKIE, COWEN AND VAN ANTWERPEN, Circuit Judges
(Filed: February 5, 2015)
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OPINION*
_______________

______________
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 14-1153

Document: 003111869019

Page: 2

Date Filed: 02/05/2015

COWEN, Circuit Judge.
Defendant John J. McElroy appeals from the criminal sentence imposed by the
United States District Court for the Eastern District of Pennsylvania. We will enforce the
appellate waiver executed by McElroy and summarily affirm his sentence.
I.
McElroy pled guilty to seventeen counts of wire fraud (and aiding and abetting wire
fraud) in violation of 18 U.S.C. §§ 1343, three counts of making false statements to obtain a
loan (and aiding and abetting the making of false statements) in violation of 18 U.S.C. §§
1014, and ten counts of engaging in monetary transactions from unspecified unlawful
activity (and aiding and abetting such criminal conduct) in violation of 18 U.S.C. §§ 1957.
As part of the plea agreement, McElroy waived his rights to appeal or collaterally attack
his conviction or sentence except in limited circumstances.
The District Court sentenced McElroy to 108 months imprisonment and five years
supervised release. The District Court imposed three special conditions of supervised
release: (1) that McElroy participate in a mental health program for evaluation or
treatment; (2) that he report any regular contact with children under the age of eighteen to
the United States Probation Office and that he not obtain employment or volunteer work
including regular contact with children younger than eighteen; and (3) that he comply with
the requirements of the Sex Offender Registration and Notification Act (“SORNA”). He
was also ordered to pay restitution in the amount of $1,491,979.74 as well as a $3000
special assessment. McElroy filed a timely notice of appeal and a motion to correct the
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sentence. His motion was denied. The government filed a motion to enforce the appellate
waiver and for summary affirmance.
II.
McElroy’s plea agreement limited his potential appeals to challenging, exclusively,
(1) a sentence exceeding the statutory maximum, (2) an erroneous upward departure from
the Sentencing Guidelines, and (3) an unreasonable sentence above the final Sentencing
Guideline range determined by the District Court. According to McElroy, the appellate
waiver does not bar his appeal because enforcement of the waiver would result in a
miscarriage of justice.1 See, e.g., United States v. Goodson, 544 F.3d 529, 536 (3d Cir.
2009). He contends that the special conditions were patently illegal, unsupported by the
record, and imposed a greater deprivation of liberty than was reasonably necessary. He
further claims that the District Court’s consideration of salacious, out-of-date, and
unfounded allegations infected the entire sentence. However, we conclude that the District
Court’s sentence—and, in particular, the three special conditions imposed by the District
Court—were appropriate and that, in any event, the enforcement of the appellate waiver
would not result in a miscarriage of justice. See, e.g., United States v. Wilson, 429 F.3d
455, 458 (3d Cir. 2005) (indicating that miscarriage of justice exception will be applied
sparingly and without undue generosity).
Although McElroy’s conviction and sentence arises out of his involvement in a

1

The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
possess appellate jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
3

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mortgage fraud scheme, the District Court did not commit reversible error (or a
miscarriage of justice) by imposing the conditions. See, e.g., United States v. Heckman,
592 F.3d 400, 405 (3d Cir. 2010) (“[O]nly a ‘condition with no basis in the record, or with
only the most tenuous basis, will inevitably violate § 3583(d)(2)’s command that such
conditions involve no greater deprivation of liberty than is reasonably necessary.’” (citation
omitted)); United States v. Pruden, 398 F.3d 241, 248-49 (3d Cir. 2005) (“The § 3553(a)
factors are fairly broad, but they do impose a real restriction on the district court’s freedom
to impose conditions on supervised release. Courts generally cannot impose such a
condition—even one with a clearly rehabilitative purpose—without evidence the condition
imposed is ‘reasonably related,’ that is, related in a ‘tangible way,’ to the crime or to
something in the defendant’s history.” (citation omitted)). More broadly, the District Court
reasonably relied on McElroy’s troubling (and ongoing) history of self-serving and harmful
behavior to decide on an appropriate sentence. See, e.g., United States v. Levinson, 543
F.3d 190, 195 (3d Cir. 2008) (“[W]e are to ensure that a substantively reasonable sentence
has been imposed in a procedurally fair way.”). While serving as a Catholic priest in New
Jersey in the late 1980s, McElroy was convicted of aggravated sexual contact and
endangering the welfare of a child. He was sentenced to five years imprisonment.
Psychological evaluations indicated that McElroy had a manipulative, psychopathic, and
sociopathic personality. In 2007, McElroy and his first wife were divorced, and, during the
course of these divorce proceedings, she claimed that he sexually abused their daughter.
McElroy formally relinquished his parental rights, and the state court prohibited him from
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any contact with his own daughter. Beginning in 2007, McElroy participated in a
sophisticated and protracted mortgage fraud scheme. Given these circumstances, the
District Court appropriately determined that:
Mr. McElroy’s adult life has been consistently marked by predatory and
opportunistic behavior, behavior which drove the sex offenses just as it drove
the financial fraud offenses. His tendency to commit crimes of opportunity
has not diminished. The psychologist’s words in the August 1989 evaluation
are quite revealing: Mr. McElroy’s behavior was “simply an expression of
his tendency to take what he wanted, when he wanted it.” See PSR ¶ 65.
Judging by the facts of this case, the psychologist’s words are still true
twenty-five years later.
(A260.)
III.
For the foregoing reasons, we grant the government’s motion. We will enforce
McElroy’s appellate waiver and summarily affirm his sentence.

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