Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________
No. 09-3359
_____________
UNITED STATES OF AMERICA
v.
WILLIAM FRAZIER,
also known as Bilal
also known as Trayvon Scott,
William Frazier,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-08-cr-00179-005)
District Judge: Hon. Paul S. Diamond
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 6, 2012
Before: SLOVITER, VANASKIE, and GARTH, Circuit Judges.
(Filed: February 22, 2012)
____________
OPINION
____________
GARTH, Circuit Judge
After a jury trial, Appellant William Frazier was convicted of thirty counts of bank
fraud and aiding and abetting. The District Court imposed a sentence of ninety-six
1
months, and Frazier now appeals. For the reasons that follow, we will affirm Fraziers
conviction and sentence.
I.
We write principally for the benefit of the parties and recite only the facts essential
to our disposition.
Four individuals who all pled guilty to bank fraud testified in a jury trial that
Frazier operated a check cashing scheme involving each of them. According to their
testimony, Frazier would provide them with counterfeit checks, drive the others to banks
to cash them, and then divide the proceeds from cashing the fraudulent checks. On some
occasions, when Frazier drove the witnesses to the bank, another individual, identified as
Tone, would also be in the car, along with maps of bank locations. The witnesses also
testified that Frazier took their personal information, which he used to ensure that the
information on the checks would match the witnesses identification. On the basis of this
testimony, the jury convicted Frazier of 30 counts of bank fraud and aiding and abetting
in violation of 18 U.S.C. 1344 and 18 U.S.C. 2.
On July 30, 2009, the District Court held a sentencing hearing. The District Court
assessed a four-level enhancement under Sentencing Guideline 3B1.1(a) for Fraziers
role as an organizer or leader of a criminal activity that involved five or more
participants and a three-point enhancement under Sentencing Guideline 4A1.2 for
Frazier having been sentenced to a term of imprisonment exceeding one year and one
month . . . within fifteen years of [Fraziers] commencement of the instant offense. The
District Court concluded that Fraziers offense level was seventeen and that his offender
2
score was VI. Under that level and score, the guideline sentence range was fifty-one to
sixty-three months. Having previously given proper notice that an upward variance
might be considered, the Court imposed a sentence of ninety-six months, with that
sentence being imposed concurrently on each of the 30 counts for which Frazier was
convicted. Frazier was also fined $40,000, subjected to a special assessment of $3,000,
and ordered to pay $32,241.34 in restitution. Frazier timely appealed.
II.
We have jurisdiction over Fraziers appeal of his conviction pursuant to 28 U.S.C.
1291, and jurisdiction over his appeal of his sentence pursuant to 18 U.S.C. 3742. In
considering a claim of insufficient evidence to support a conviction, the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Our review of a District Courts decisions pertaining to adjustments under the
Sentencing Guidelines depends on the nature of the District Courts decisions. Where
the decision is grounded on an essentially factual basis, we defer to the district courts
findings and reverse only for clear error. However, if the alleged error is legal, the issue
should be reviewed de novo. U.S. v. Bierley, 922 F.2d 1061, 1064 (3d Cir. 1990).
We review the procedural and substantive reasonableness of a district courts
sentence . . . for abuse of discretion. United States v. Young, 634 F.3d 233, 237 (3d Cir.
2011) (quoting U.S. v. Doe, 617 F.3d 766, 769 (3d Cir. 2010)). For a sentence to be
procedurally reasonable, the sentencing court must give rational and meaningful
3
consideration to the relevant 3553(a) factors. Id. Further, a sentence is procedurally

unreasonable if the sentencing authority fails to adequately explain the chosen sentence including an explanation for any deviation from the Guidelines range. Gall v. U.S., 552
U.S. 38, 51 (2007). Substantive reasonableness inquires into whether the final sentence,
wherever it may lie within the permissible statutory range, was premised upon
appropriate and judicious consideration of the relevant factors. Young, supra, 634 F.3d
at 237.
III.
On appeal, Frazier claims that: 1) the evidence introduced at trial was insufficient
to sustain his conviction; 2) he is entitled to a remand for a new sentencing hearing on the
basis of the District Courts four-level enhancement under Sentencing Guideline
3B1.1(a); and 3) his sentence was unreasonable. We will address each of these
contentions in turn.
Frazier first contends that there was insufficient evidence to sustain his conviction.
Specifically, Frazier argues that the witnesses who constituted the crux of the
governments case all had self-serving reasons to testify, as they were all themselves
involved in the criminal enterprise. Frazier therefore argues that their testimony is
unreliable, especially insofar as it was uncorroborated by external evidence. We
disagree. This court has expressly stated that uncorroborated accomplice testimony may
constitutionally provide the exclusive basis for a criminal conviction. United States v.
De LaRosa, 450 F.2d 1057, 1060 (3d Cir. 1971). Where, as here, the testimony of the
accomplices was, if credited, sufficient to establish the defendants guilt, we conclude
4
that a rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, supra, 443 U.S. at 319. Accordingly, Fraziers
conviction was supported by sufficient evidence, and should be affirmed.
Frazier next claims that he is entitled to a new sentencing hearing because the
District Court improperly imposed a four-level sentencing enhancement on the basis of
his status as a leader of a criminal activity that involved five or more participants.
Frazier argues that Tone should not be counted as a participant in the criminal activity
for which Frazier was convicted. Assuming that Tone does not qualify as a participant,
Frazier argues, the criminal activity involved only the four witnesses and Frazier himself.
Frazier claims that the District Court improperly included Frazier when counting the
participants in the criminal activity, and that if he were not included, there would only be
four participants, rendering the application of Sentencing Guideline 3B1.1(a) improper. 1
Frazier acknowledges, however, that our decision in United States v. Colletti, 984
F.2d 1339, 1346 (3d Cir. 1992), held that a defendant himself could count as a participant
for Guideline 3B1.1(a) purposes. He therefore invites us to overturn our prior decision in
Colletti. We decline to do so. Pursuant to our Internal Operating Procedure 9.1, [i]t is
the tradition of this court that the holding of a panel in a precedential opinion is binding
on subsequent panels. Thus no subsequent panel overrules the holding in a precedential
opinion of a previous panel. There is no reason for us to revisit Colletti, and we
1
Sentencing Guideline 3B1.1 provides, in relevant part: Based on the defendants role
in the offense, increase the offense level as follows: (a) If the defendant was an organizer
or leader of a criminal activity that involved five or more participants or was otherwise
extensive, increase by 4 levels.
5
therefore conclude that the District Court properly counted Frazier as a participant and
properly imposed a four-level enhancement under Sentencing Guideline 3B1.1(a).
Fraziers final claim is that his sentence was unreasonable. Specifically, he claims
that the District Court erred in granting the governments request for an upward variance
from the guideline sentence range, and further claims that the sentence was unreasonable
under all of the circumstances.
Frazier first contends that the District Courts upward variance from the guideline
sentence range was premised on the District Courts improper consideration of the fact
that Frazier had six children and the fact that Frazier chose to proceed to trial.
Fraziers contention that the District Court penalized him for the number of his
children is unsupported by the record. While the District Court did mention at sentencing
that Frazier was the father of six children, there is no indication that the District Court
considered this fact as a strike against him. On the face of the record, it is equally
plausible that the District Court mentioned Fraziers children because of concern over the
effect lengthy incarceration would have on them. In any event, there is nothing in the
record to support an inference that the District Court considered the number of Fraziers
children in granting an upward variance.
Fraziers claim that he was penalized for choosing to go to trial is equally without
merit. The comments upon which this claim is premised concern Fraziers own
statements disputing his guilt at the time of sentencing. A sentencing judge properly
may consider the defendants amenability to rehabilitation and expressions of remorse for
the crime committed when the judge selects an appropriate sentence. United States v.
6
Rosenberg, 806 F.2d 1169, 1179 (3d Cir. 1986). It was therefore proper for the District
Court to consider Fraziers own statements disputing his guilt. The upward variance was
plainly based on appropriate factors under 18 U.S.C. 3553 (a), and there is no reason to
believe that the District Court considered any additional impermissible factors.
Having concluded that the upward variance was procedurally reasonable, we now
turn to Fraziers claim that his sentence was unreasonable under all of the
circumstances. We view this as a claim that his sentence was substantively
unreasonable. Frazier does not allege any specific unreasonableness. Instead, he simply
observes that his sentence was significantly greater than the guidelines range, and
suggests that such a lengthy sentence is retributive.
[I]t is not the role of an appellate court to substitute its judgment for that of the
sentencing court as to the appropriateness of a particular sentence. Solm v. Helm, 463
U.S. 277, 290 n. 16 (1983). In reaching its final sentence, the District Court considered
Fraziers lengthy criminal history, repeated violations of probation and parole, threats to
witnesses, refusal to cooperate with his probation officer, and lack of rehabilitation from
previous sentences. On such a record, we cannot conclude that no reasonable
sentencing court would have imposed the same sentence on [Frazier] for the reasons the
district court provided. U.S. v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). We will
affirm Fraziers sentence.
IV.
Because we conclude that Fraziers conviction was supported by sufficient

evidence, that his offense level was properly determined, and that his sentence was not
unreasonable, we will affirm his conviction and sentence.

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UNITED STATES COURT OF APPEALS

consideration to the relevant 3553(a) factors. Id. Further, a sentence is procedurally

Because we conclude that Fraziers conviction was supported by sufficient

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