NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-2295 _______________

UNITED STATES OF AMERICAN

v.

STEVEN B. WILKINSON, Appellant _______________

On Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. No. 1-93-cr-00158-001) District Judge: Honorable Jennifer P. Wilson _______________

Submitted Under Third Circuit L.A.R. 34.1(a) June 29, 2023

Before: JORDAN, KRAUSE and SMITH, Circuit Judges

(Filed July 6, 2023) _______________

OPINION _______________

JORDAN, Circuit Judge.

Steven Wilkinson challenges the substantive reasonableness of his sentence. He

asserts that the District Court erred in declining to grant him a downward variance

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. because it failed to sufficiently account for several mitigating factors, principally, that he

had allegedly served several years’ imprisonment unnecessarily. Because the District

Court’s imposition of a within-guidelines sentence was substantively reasonable, we will

affirm.

I. BACKGROUND

Wilkinson has an extensive criminal record dating back to a 1976 conviction for

statutory rape of a 13-year-old girl when he was 19 years old. Relevant here, Wilkinson

was later convicted for rape in 1983, and, in 1992, he was convicted of several

Pennsylvania crimes: involuntary deviant sexual intercourse, receiving stolen property,

and carrying a firearm without a license.1 In July 1993, while Wilkinson was in state

custody, the government filed a one-count Information in the U.S. District Court for the

Middle District of Pennsylvania, charging him with possession of a firearm by a

convicted felon under

(g)(1). Because Wilkinson had previously been

convicted of three violent felonies, he qualified as an armed career criminal under

(e)(1), which carries a 15-year mandatory minimum sentence. Wilkinson

pled guilty to the federal charge, and he was sentenced to 210 months’ imprisonment, to

be followed by 60 months’ supervised release. The court ordered the federal sentence to

run concurrently with Wilkinson’s state sentences.

1 The underlying conduct for the 1992 convictions occurred on November 16, 1991, when Wilkinson forced a woman to have sex with him in his home by threatening her with a loaded gun that had been stolen. Wilkinson was sentenced to one-to-two years’ imprisonment for involuntary deviant sexual intercourse, three-to-seven years for receiving stolen property, and two-to-five years for carrying a firearm without a license.

2 On February 12, 2007, one day before Wilkinson’s release from federal custody,

the Bureau of Prisons certified him as a “sexually dangerous person” pursuant to

(c). United States v. Wilkinson,

, at *2 (D. Mass. Feb. 14,

2008). The U.S. District Court for the District of Massachusetts subsequently found

probable cause that Wilkinson would commit a sexually violent crime, so he remained in

federal custody pending a final determination by the court.

. On August 20,

2009, the court ruled that Wilkson was not subject to civil commitment and could be

released from federal custody. United States v. Wilkinson,

(D. Mass. 2009). As a result, he was transferred back to Pennsylvania state custody to

serve the remainder of his state sentences. United States v. Wilkinson,

,

at *1 (M.D. Pa. Feb. 17, 2010). Wilkinson remained in state custody until April 3, 2015,

at which point he began serving his term of supervised release.

While on supervised release, Wilkinson was twice arrested for driving under the

influence (“DUI”) – first in March 2016 and again in April 2016. Also in April 2016,

Wilkinson was charged for failing to register as a sex offender as required by state law.

He pled guilty to all three of those state offenses.2 In April 2022, Wilkinson completed

his state sentences and appeared before the U.S. District Court for the Middle District of

Pennsylvania in May 2022 for a Final Supervised Release Revocation Hearing. At the

hearing, Wilkinson admitted to both DUIs, having failed to register as a sex offender,

2 He was sentenced to 6 months’ probation for the first driving under the influence charge, and five days-to-six months’ imprisonment for the second. He received a sentence of three-to-six years’ imprisonment for failing to register as a sex offender.

3 having failed to notify U.S. Probation of contact with law enforcement, and having failed

to complete a mental health and sex offender treatment program, all in violation of his

supervised release.

Although the parties agreed that, under the U.S. Sentencing Guidelines, Wilkinson

was subject to a prison term of 21-to-27 months due to the violations of his supervised

release, Wilkinson filed a sentencing memorandum asking the Court for a downward

variance to time served and no supervision. In support of that request, Wilkinson made

the following arguments: (1) that he overserved his previous sentence by five years

because, after his federal sentence ended on September 8, 2009, he was returned to state

custody until April 3, 2015, even though the state and federal sentences were intended to

run concurrently3; (2) that he would not qualify as an armed career criminal if he were

sentenced in 2022 because his predicate convictions were no longer considered violent

felonies; and (3) that he was wrongfully convicted for failing to register as a sex offender

in 2016 because the Pennsylvania Supreme Court, in Commonwealth v. Muniz,

(Pa. 2017), subsequently struck down Pennsylvania’s sex offender

registration scheme.

The District Court considered and rejected each of Wilkinson’s arguments. First,

the Court determined that, from September 17, 2009, to January 23, 2015, Wilkinson was

3 On June 7, 2022, Wilkinson filed a supplemental sentencing memorandum admitting that he did not overserve his sentence from 2009 to 2015 because, during that period, he was serving “state parole back time” due to state parole violations. (App. at 32 & n.1).

4 appropriately serving a state parole sentence and, therefore, did not overserve his federal

sentence. Second, it determined that the 31 months Wilkinson spent in federal custody

while awaiting a civil commitment determination were unrelated to Wilkinson’s conduct

on supervised release, which was the proper basis for the sentencing. Relatedly, the

Court noted that if the Bureau of Prisons determined that Wilkinson was owed time

credited against the current sentence, it had the discretion to grant such credit. Third, the

Court acknowledged that Wilkinson might no longer be an armed career criminal under

current caselaw, but it found that Wilkinson was properly sentenced in 1993. Finally, the

Court declined to address the merits of whether Wilkinson was wrongfully convicted of

failing to register as a sex offender as he had pled guilty and never attacked the

conviction on appeal.

After observing Wilkinson’s “complete failure to comply with the basic

expectations of supervision each time [he was] released[,]” the Court determined that a

21-month term of imprisonment – the bottom of the U.S. Sentencing Guidelines range –

was “appropriate in order to provide adequate community protection and deterrence.”

(App. at 118). Wilkinson has timely appealed.

II. DISCUSSION4

Wilkinson argues on appeal that the District Court abused its discretion by

denying his request for a downward variance to time served. Asserting that his sentence

4 The District Court had subject matter jurisdiction over this criminal case pursuant to

and 3583(e). We have appellate jurisdiction pursuant to

and

(a).

5 was substantively unreasonable because it failed to account for “compelling mitigating

factors,” he marshals the same arguments he made before the District Court, namely:

“that: 1) he served more time in prison on his federal sentence than he should have

served; 2) if sentenced today, he would not qualify as an armed career criminal; and 3) he

was wrongfully convicted for failing to register as a sex offender.” (Opening Br. at 9.)

We review the substantive reasonableness of a sentence imposed for a violation of

supervised release by determining “whether the record as a whole reflects rational and

meaningful consideration of the factors enumerated in

(a).” United

States v. Grier,

(3d Cir. 2007) (en banc). In so doing, we apply an

abuse-of-discretion standard, United States v. Fumo,

(3d Cir. 2011),

which requires the Court to affirm unless “no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the reasons the district court

provided[,]” United States v. Tomko,

(3d Cir. 2009) (en banc).

The transcript of Wilkinson’s sentencing hearing reflects that the District Court

considered the

(a) factors in imposing a sentence at the bottom of the

U.S. Sentencing Guidelines range. See United States v. Olhovsky,

(3d

Cir. 2009) (holding that district courts need not discuss every factor contained in

§ 3553(a) so long as the record makes clear that the factors were considered at

sentencing.) The Court specifically balanced, on the one hand, aggravating factors such

as Wilkinson’s “very serious criminal convictions” his “complete failure to comply with

the basic expectations of supervision each time [he was] released[,]” and that he remains

“a danger to the public,” against mitigating factors such as Wilkinson’s relatively

6 advanced age and his past difficulty in adjusting to societal expectations “after being

released from an incredibly long period of institutionalized life[.]” (App. at 118.)

And, as discussed above, the District Court reviewed each of Wilkinson’s three

arguments, determining that none of them warranted granting a downward variance. See

United States v. Seibert,

(3d Cir. 2020) (“As we have previously

explained, a district court’s failure to give mitigating factors the weight a defendant

contends they deserve does not make a sentence substantively unreasonable.”). Of

particular note, although the District Court acknowledged that Wilkinson may have

unnecessarily spent time in prison while awaiting a civil commitment ruling, it reasoned

that Wilkinson’s conduct “while [he was] under federal supervision” in 2016 was the

appropriate focal point for evaluating Wilkinson’s sentence for a violation of supervised

release. (App. at 117.) It was reasonable for the Court to determine that, for the purposes

of sentencing, Wilkinson’s past imprisonment was unrelated to his later conduct while on

supervised release.

Because the District Court considered not only Wilkinson’s arguments, but also

the

(a) factors – and explained its findings on the record – we cannot say

that “no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided.” Tomko,

.

III. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s sentence.

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