USA v. Jonathan Cobb

Filing

NOT PRECEDENTIAL OPINION Coram: MCKEE, RENDELL and FUENTES, Circuit Judges. Total Pages: 5. Judge: MCKEE Authoring.

Case: 16-2684

Document: 003112641105

Page: 1

Date Filed: 06/02/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2684
_____________
UNITED STATES
v.
JONATHAN COBB,
Appellant
______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 2:09-cr-0733-001)
District Judge: Hon. Alan N. Bloch
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 9, 2017
______________
Before: McKEE, RENDELL, and FUENTES, Circuit Judges.
(Opinion filed: June 2, 2017)
_______________________
OPINION*
______________________

*

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

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Document: 003112641105

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McKEE, Circuit Judge.
Jonathan Cobb appeals the district court’s amended judgment sentencing him to
180 months’ imprisonment. For the reasons below, we will affirm the judgment of the
district court.
I1
When a defendant fails to object at the time of sentencing, we review a procedural
challenge to the sentence for plain error.2 A plain error is a clear and obvious error that
affects substantial rights.3 An appellate court should only exercise its discretion to correct
a plain error if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.”4 Challenges to the substantive reasonableness of a sentence are reviewed
for an abuse of discretion, regardless of whether they fall inside or outside of the
guideline range.5 An abuse of discretion occurs when a district court bases its decision on
“a clearly erroneous finding of fact, an errant conclusion of law or an improper
application of law to fact.”6
Cobb argues that his sentence is both procedurally and substantively unreasonable
because the district court failed to neutralize the taint of the ineffective assistance of

1

We write only for the parties in this non-precedential opinion, so our factual recitation is
brief.
2
United States v. Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014) (en banc).
3
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).
4
Olano, 507 U.S. at 732 (alteration in original) (citation and internal quotation marks
omitted).
5
Gall v. United States, 552 U.S. 38, 51 (2007).
6
Pardini v. Allegheny Intermediate Unit, 524 F.3d 419, 422 (3d Cir. 2008) (citation and
internal quotation marks omitted).
2

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counsel Cobb received as required under Lafler v. Cooper.7 First, Cobb asserts that the
district court accepted the government’s claim that an 851 Notice would have been filed
even if Cobb had pled guilty, and that the court failed to consider circumstantial evidence
that indicated otherwise. Although it is clear that the district court accepted the
government’s representations about the 851 Notice, it only did so after Cobb’s counsel
conceded during the February 10, 2016 relief hearing that there was no direct evidence
that would have contradicted the representations of the Assistant United States Attorneys
involved.8 Given the absence of contradictory evidence, Cobb’s attorney did not object
when the district court found that the 851 Notice would have been filed whether or not
Cobb would have exercised his right to trial.9 As the 851 Notice issue was settled by the
time of Cobb’s resentencing hearing, it was not procedurally unreasonable for the district
court to fail to revisit the issue.
Cobb further argues that the district court erred in re-invoking the same 78%
variance Cobb had received on his original sentence. He claims that the reasons for that
original upward variance did not apply to the resentencing. Cobb claims that the
justifications given by the district court for the original upward variance, which included
information from Cobb’s trial, were not relevant for resentencing purposes. An analysis
of the resentencing transcript, however, shows that the district judge chose the 78%
variance based on the seriousness of Cobb’s crimes, the importance of deterrence, and

7

Lafler v. Cooper, 566 U.S. 156, 170 (2012).
App. 118.
9
App. 120.
8

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Cobb’s extensive criminal record.10 Those factors had not changed since Cobb’s original
sentencing, and it was therefore not unreasonable for the court to again impose a 78%
variance. Additionally, despite Cobb’s assertion that the district court incorrectly
supplemented the reasoning behind Cobb’s sentence with “unspecified trial evidence,”11
Lafler clearly indicates that the court need not disregard what occurred at trial when
attempting to neutralize the taint of ineffective assistance of counsel.12
Finally, Cobb argues that the district court gave “no meaningful consideration to
the arguments and evidence” his attorney presented during the resentencing hearing.13
However, the district court need not explicitly address every argument made by the
litigant or make specific findings about each of the § 3553(a) factors.14 An examination
of the resentencing transcript reveals that the district court stated that it intended to give
“full credit” to Cobb’s behavior and accomplishments in prison by reducing his sentence
from 288 to 180 months.15 Though the resulting sentence is still significant, the reduction
is also quite significant. Moreover, the district court specifically referred to several of the
§ 3553(a) factors during Cobb’s resentencing, including the seriousness of the offense,

10

App. 181-83.
Appellant Br. at 3.
12
Lafler, 566 U.S. at 171-72.
13
Appellant Br. at 22.
14
United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006), abrogated on other grounds
by Rita v. United States, 551 U.S. 338 (2007).
15
App. 183-84.
11

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adequate deterrence to others, and protection of the public.16 Therefore, we find that there
were no procedural defects in the district court’s resentencing of Cobb.

II
In United States v. Tomko, we held that a sentence that is procedurally sound will
not be considered substantively unreasonable “unless no reasonable sentencing court
would have imposed the same sentence on that particular defendant for the reasons the
district court provided.”17 Cobb’s resentencing resulted in a reduced sentence of 180
months, 108 months fewer than his original sentence. A consideration of the substantive
reasonableness of a sentence under an abuse of discretion standard “gives district courts
broad latitude in sentencing.”18 The second sentence was clearly not substantively
unreasonable under that standard.
III
For the aforementioned reasons, we will affirm the judgment of the district court.

16

App. 181-82.
United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009).
18
United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008) (footnote omitted).
17

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