USA v. Jean Neriu
Filing
PRECEDENTIAL OPINION Coram: SMITH, HARDIMAN and SHWARTZ, Circuit Judges. Total Pages: 8. Judge: SHWARTZ Authoring. --[Edited 05/25/2016 by AWI]
Case: 15-3688
Document: 003112306282
Page: 1
Date Filed: 05/25/2016
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-3688
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UNITED STATES OF AMERICA
v.
JEAN ROBERT NERIUS,
Appellant
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APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
(M.D. Pa. No. 4-13-cr-00171-001)
District Judge: Honorable Matthew W. Brann
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Submitted Under Third Circuit LAR 34.1(a)
May 20, 2016
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Before: SMITH, HARDIMAN, and SHWARTZ, Circuit
Judges.
(Filed: May 25, 2016)
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Case: 15-3688
Document: 003112306282
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Stephen R. Cerutti, II, Esquire
Eric Pfisterer, Esquire
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
D. Toni Byrd, Esquire
Ronald A. Krauss, Esquire
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
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OPINION
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SHWARTZ, Circuit Judge.
Jean Robert Nerius pled guilty to resisting or impeding
correctional employees, in violation of 18 U.S.C. § 111(a)(1),
and damaging property within special maritime and territorial
jurisdiction of the United States, in violation of 18 U.S.C. §
1363. Nerius was originally sentenced as a career offender to
37 months’ imprisonment but, following the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015),
was resentenced to 36 months. Nerius claims that his new
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sentence is presumptively vindictive under North Carolina v.
Pearce, 395 U.S. 711 (1969), because it falls at the upper end
of the non-career offender Guideline range, while his original
sentence was at the lower end of the career offender range.
Because his revised sentence was lower than that originally
imposed, Pearce’s presumption of judicial vindictiveness does
not apply, nor is there any evidence of actual vindictiveness,
and thus we will affirm.
I
While in custody at the United States Penitentiary in
Lewisburg, Pennsylvania, Nerius committed several offenses.
In one incident, he bit a correctional employee’s finger. In a
separate incident, he broke the sprinkler head in his cell,
causing the area to flood. Nerius was charged with, among
other things, resisting correctional officers and damaging
property in violation of 18 U.S.C. §§ 111(a)(1) and 1363,
respectively, and he pled guilty to both counts.1
The Presentence Investigation Report (“PSR”)
calculated a base offense level of 14, which was increased to
17 because the § 111(a)(1) charge was deemed a crime of
violence and, due to his criminal record, qualified Nerius as a
career offender under U.S.S.G. § 4B1.1. Nerius then received
a three-level reduction for acceptance of responsibility under
§ 3E1.1. As a result, Nerius had a total offense level of 14, a
criminal history category of VI, and faced an advisory
Guidelines range of 37 to 46 months’ imprisonment.
Under the terms of Nerius’s plea agreement, the
Government dismissed two other counts.
1
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Nerius objected to his designation as a career offender,
arguing that his violation of § 111(a) does not constitute a
crime of violence under the residual clause of § 4B1.2(a)(2).
The District Court rejected this argument.
Nerius then sought a downward variance based on his
“exemplary behavior” in prison since August 2013. App. 72.
He acknowledged that he had numerous disciplinary incidents
in prison but, since being charged with these crimes, he had
remained “completely incident free at a very high level
security institution with very strict conditions,” demonstrating
post-offense rehabilitation. Id. The Government opposed a
variance, arguing that the District Court could reward this
“recent good behavior” with a within-Guidelines sentence.
App. 77. The District Court considered Nerius’s violent
actions in the context of his “long history with the criminal
justice system,” App. 79, acknowledged that Nerius had
recently improved his behavior, and on that basis found “that
a sentence at the bottom of the [career offender] guideline
range is reasonable, appropriate, and is not greater than
necessary to meet sentencing objectives.” Id. It therefore
imposed a 37-month sentence on each count, to be served
concurrently.2 Nerius appealed.
While his appeal was pending, the Supreme Court held
that the residual clause in the Armed Career Criminal Act is
void for vagueness. Johnson, 135 S. Ct. at 2557. Because §
4B1.2(a)(2) contains a similar residual clause, the
Government determined that Johnson applied to § 4B1.2 and
2
The concurrent 37-month sentences were to be served
consecutively to a sentence Nerius was already serving for a
drug conviction.
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filed an unopposed motion to vacate and remand Nerius’s
case for resentencing, which this Court granted. See Order,
United States v. Nerius, No. 14-4121 (3d Cir. Aug. 26, 2015).
At resentencing, the District Court adopted the
Government’s position that Nerius no longer qualified as a
career offender and determined that his revised total offense
level was 12 and his criminal history category remained VI,
yielding a Guidelines range of 30 to 37 months’
imprisonment. Nerius again sought a variance to either a
below-Guidelines sentence or a sentence at the bottom of the
revised range, emphasizing his continued good behavior in
prison. The Government maintained that a within-Guidelines
sentence was appropriate. The District Court discussed the
nature and circumstances of the offense and Nerius’s history
and characteristics, including his record of good behavior,
found “a sentence at the high end of the [non-career offender]
guideline range to be reasonable, appropriate and not greater
than necessary to meet sentencing objectives,” and sentenced
Nerius to a 36-month term on each count, to be served
concurrently.3 App. 110. Nerius appeals, arguing that his
revised sentence triggered the Pearce presumption of judicial
vindictiveness and thereby violated due process because, at
his initial sentencing, he was sentenced at the bottom of the
then-applicable Guideline range, and at his resentencing, he
was sentenced near the top of the revised range.
3
Immediately after the District Court announced the
sentence, Nerius unsuccessfully sought reconsideration of the
sentence.
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II4
“Due process of law . . . requires that vindictiveness
against a defendant for having successfully attacked his first
conviction must play no part in the sentence he receives after
a new trial.” Pearce, 395 U.S. at 725. Under Pearce and its
progeny, when a defendant receives a higher sentence after
having exercised his due process rights to appeal, a
presumption of vindictiveness applies, “which may be
overcome only by objective information in the record
justifying the increased sentence.” United States v. Goodwin,
457 U.S. 368, 374 (1982). The Pearce presumption does not
apply “when the aggregate [revised] sentence is less than that
originally imposed and there is no evidence of vindictiveness
on the part of the sentencing court.” Kelly v. Neubert, 898
F.2d 15, 16, 18 (3d Cir. 1990) (rejecting Pearce claim where,
on remand, sentencing court increased sentences on several
individual counts but reduced overall sentence); see United
States v. Murray, 144 F.3d 270, 275 (3d Cir. 1998) (rejecting
Pearce claim where defendant’s “new sentences on the drug
counts do not exceed the total length of his original sentence”
and there was no evidence of actual vindictiveness). Where
the presumption does not apply, an appellant must provide
“proof of actual vindictiveness” by the sentencing judge at
resentencing to support a claim of judicial vindictiveness.
Rock v. Zimmerman, 959 F.2d 1237, 1258 (3d Cir. 1992) (en
banc), abrogated on other grounds by Brecht v. Abrahamson,
507 U.S. 619 (1993).
4
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a).
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The Pearce presumption focuses on whether the length
of the new sentence exceeds the total length of the original
sentence. Because of this focus, the fact that two sentences
may fall in different relative positions within the original and
revised Guideline ranges is irrelevant. Under Pearce, we use
the actual sentence imposed following the appeal as a litmus
test for the presence or absence of vindictiveness and do not
require the resentencing process to mirror the original
proceeding. Kelly, 898 F.2d at 16. As a result, for Pearce
purposes, the District Court is not obligated to impose a
sentence at the bottom of the revised range simply because its
original sentence was at the bottom of the then-applicable
range. Here, while Nerius’s new sentence fell at a different
point in the revised sentencing guideline range, he in fact
received a shorter sentence at resentencing, and thus the
presumption is not triggered. See id.
Moreover, Nerius does not raise, nor do we discern a
basis for, a claim of actual vindictiveness. The District Court
explained that Nerius’s criminal history and extensive prison
disciplinary record, which included dozens of incidents
between 2005 and 2013 while he was serving his nearly 16year sentence, weighed against his two-year record of good
behavior, and justified a 36-month sentence.
For these reasons, the reduced sentence is not subject
to the Pearce presumption. That, “coupled with the absence
of anything to indicate [actual] vindictiveness[,] . . . satisfies
us” that the lower 36-month sentence was proper. Id. at 18.
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III
For the foregoing reasons, we will affirm the District
Court’s judgment of sentence.
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