Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit

2-11-2009

USA v. Patrick Lucky Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2596

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 08-2596

UNITED STATES OF AMERICA

v.

PATRICK LUCKY,

Appellant

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 07-cr-00198-1) District Court Judge: Honorable Thomas I. Vanaskie

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 5, 2009

Before: RENDELL and ROTH, Circuit Judges, and PADOVA,* District Judge

(Filed: February 11, 2009) __________

OPINION OF THE COURT __________

__________________

* Honorable John R. Padova, Senior Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation. PADOVA, Senior District Judge

Patrick Lucky appeals his 230-month custodial sentence, imposed following his

entry of a guilty plea to aiding and abetting armed bank robbery, in violation of

(a) and (d) and

. We have jurisdiction pursuant to

.

We will affirm.

We review the District Court’s sentence for reasonableness under an abuse of

discretion standard. United States v. Sevilla,

(3d Cir. 2008) (citing

Gall v. United States, ___ U.S. ___,

(2007)). “In this regard, ‘our role

is two-fold.’”

(quoting United States v. Wise,

(3d Cir. 2008)).

“We must ‘first ensure that the district court committed no significant procedural error’ –

for instance, by ‘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 to adequately

explain the chosen sentence – including an explanation for any deviation from the

Guidelines range.’” Id. (quoting Gall,

; Wise,

)).

“Second, ‘[i]f we determine that the district court has committed no significant procedural

error, we then review the substantive reasonableness of the sentence under an abuse-of-

discretion standard, regardless of whether it falls within the Guidelines range.’”

(quoting Wise,

; citing Gall,

).

2 Appellant makes no assertion that the District Court improperly calculated the

Guidelines range or committed a significant procedural error. Rather, he argues that the

sentence was substantively unreasonable, because the District Court failed to

appropriately consider: (1) the circumstances of the crime, specifically, that he used only

a toy gun to rob the bank, mitigating the seriousness of the conduct and its potential for

harm; and (2) Appellant’s personal circumstances, including child abuse, poverty, lack of

educational and emotional support, substance abuse, and demonstration of contrition. He

argues that the District Court improperly focused upon his criminal history and the

criminal conduct of the bank robbery offense, and gave no meaningful consideration to

his arguments on the statutory sentencing factors.

The record of Appellant’s sentencing does not support these arguments. Lucky

concedes that the District Court acknowledged his mitigating factors, but asserts that the

Court gave them “no consideration . . . that was not otherwise included in the guidelines

calculus.” Lucky Br. at 18-19. This is clearly incorrect. Appellant made substantially

similar arguments concerning the career offender provision in the Guidelines and in

support of his arguments on the § 3553(a) factors. The District Court first calculated the

Guidelines range, denying Lucky’s motion for a downward departure because his criminal

record “in no way overstate[d] the seriousness of his criminal past” and because his prior

felony convictions were “qualifying offenses as a career offender [] of sufficient severity

that they should place him in this category.” A. 52.

3 The District Court then separately considered his arguments under § 3553(a)(1).

After making its Guidelines calculation, the District Court specifically considered and

rejected Lucky’s statutory arguments regarding the circumstances of the offense, finding

that his conduct created a situation “rife with danger.” A. 62. The District Court also

specifically rejected as a mitigating factor that Appellant used only a toy gun to commit

the crime, finding the bank teller could not have know it wasn’t real. Id.

Regarding his personal characteristics, the District Court recognized that Appellant

had an unfortunate childhood, but rejected this as a mitigating factor because he also had

chances to rehabilitate himself, and because his criminal conduct escalated over time.

The District Court concluded that Appellant’s personal characteristics provided no basis

for mitigation because he demonstrated no redeeming characteristics. The need to protect

the public, the District Court concluded, was best served by removing Appellant “from

society for near as long as I could.” A. 63. Based on this consideration of the statutory

factors, the District Court decided to impose a sentence at the upper end of the advisory

Guidelines range.

A 230-month sentence for aiding and abetting armed bank robbery by a defendant

with twenty prior convictions is also not substantively unreasonable. The finding that

Lucky was the prototypical career offender is inarguable. The relative significance of

Appellant’s admittedly troubled childhood to a sentencing decision for a crime he

committed at age 36 was within the District Court’s discretion to determine. So too was

4 the relative significance of the fact that Appellant had used a toy gun to commit the crime.

Lucky points to no apparent abuse of that discretion. The District Court meaningfully

considered all of his arguments on the statutory sentencing factors and rejected them

because of Appellant’s “blatant disregard for the law by continuing criminal conduct,

escalating up to armed bank robbery.” A. 63. Appellant has stated no good reason why

this determination should be disturbed on appeal.

Accordingly, we will AFFIRM Appellant’s sentence.

______________

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