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United States v. Christopher Curanovic, 3rd Cir. (2012)
United States v. Christopher Curanovic, 3rd Cir. (2012)
The District Court had jurisdiction under 18 U.S.C. 3231. We have jurisdiction under
28 U.S.C. 1291 and 18 U.S.C. 3742(a).
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criminal history category of II. In considering the totality of the circumstances, the
Court varied downward and sentenced Curanovic to a term of 37 months imprisonment.
II.
When a defendant knowingly and voluntarily waives his right to appeal, we will
not exercise our jurisdiction to review the merits of that appeal unless the result would
work a miscarriage of justice. United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.
2007). Based on the record before us, we believe that Curanovic knowingly and
voluntarily waived his right to appeal. The 37-month sentence imposed by the District
Court is within the sentence range agreed by the parties, and the waiver of appeal is not
affected by the District Court employ[ing] a Guidelines analysis different from that
stipulated to [in the plea agreement]. For these reasons, we conclude that this appeal
was effectively waived.
Even were we to rule on the merits of Curanovics appeal, we would hold the
District Courts sentence to be procedurally and substantively reasonable. We review a
district courts sentence for abuse of discretion, United States v. Jones, 566 F.3d 353, 366
(3d Cir. 2009), and apply a two-step process to determine whether a sentencing court
committed procedural or substantive error. Id. First, we ensure that the district court
committed no significant procedural error in arriving at its decision. United States v.
Wise, 515 F.3d 207, 217 (3d Cir. 2008). Significant procedural errors include 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. Gall v. United States, 552
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U.S. 38, 51 (2007). Second, we consider the totality of the circumstances to determine
whether the sentence is substantively reasonable. United States v. Tomko, 562 F.3d 558,
567 (3d Cir. 2009) (en banc). A sentence is substantively reasonable unless no
reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided. Id. at 568.
Where a term of imprisonment is imposed on a defendant who is already subject
to an undischarged term of imprisonment, the terms may run concurrently or
consecutively. 18 U.S.C. 3584(a). In determining whether a term of imprisonment
should run concurrently or consecutively, the district court must consider the 3553(a)
factors. Id.. at 3584(b). We review a district courts imposition of a consecutive
sentence for abuse of discretion. United States v. Swan, 275 F.3d 272, 275 (3d Cir. 2002).
The District Court did not commit procedural error in calculating the amount of
loss. Under U.S.S.G. 2B1.1, loss is the greater of actual loss or intended loss. See
U.S.S.G. 2B1.1, cmt. n.3(A). The Court was reasonable in basing its sentence on the
intended loss of $300,000, and not the actual loss of $100,000 agreed upon by the parties.
Moreover, even if it did commit procedural error in adopting the higher loss amount, that
error would be harmless because the Court sentenced Curanovic within the range that
would have applied had it adopted the lower loss amount stipulated by the parties.
In addition, the sentence is substantively reasonable. The District Judge properly
considered the 3553(a) factors when it determined that the 37-month sentence should
run consecutively to the 116-month prison term in New York. The Judge set forth
enough to satisfy [us] that he . . . considered the parties arguments and ha[d] a reasoned
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bases for exercising his own legal decisionmaking authority. Jones, 566 F.3d at 366
(citations and internal quotation marks omitted).
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