United States v. Joshua Shenego

• Court: Court of Appeals for the Third Circuit
• Decided: October 11, 2023
• Docket: 22-1901
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 22-1901 ________________

UNITED STATES OF AMERICA

v.

JOSHUA FRANCIS SHENEGO,

Appellant

Appeal from the United States District Court for the Western District of Pennsylvania (D. C. No. 3-10-cr-00003-001) District Judge: Honorable Kim R. Gibson

Submitted under Third Circuit LAR 34.1(a) on January 13, 2023

Before: JORDAN, PHIPPS and ROTH, Circuit Judges

(Opinion filed: October 11, 2023) ________________

OPINION *

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. ROTH, Circuit Judge

Joshua Shenego pleaded guilty to assault of his pregnant girlfriend. As a result,

the District Court revoked Shenego’s supervised release and sentenced him to fifteen

months’ imprisonment and two years’ supervised release, a sentence below the relevant

guideline range. Because the sentence is procedurally and substantively reasonable, we

will affirm the judgment of the District Court.

I. BACKGROUND

In 2010, Joshua Shenego pleaded guilty to distribution of five grams or more of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) and was sentenced

to 188 months of imprisonment, 1 to be followed by five years of supervised release. One

month into Shenego’s term of supervised release, the Allegheny County Court of

Common Pleas charged Shenego with strangulation, simple assault, harassment, and

criminal mischief in relation to a domestic violence incident. As a result, the Probation

Office moved to revoke Shenego’s supervised release. The charges were later dropped,

and the Probation Office revoked its petition.

Almost two years later, Johnstown police arrested Shenego after he hit his

pregnant girlfriend, Leslie Jones, with the back of his hand during an argument. Jones

fell to the floor and was unable to see out of her left eye. Shenego was subsequently

charged with felony aggravated assault and summary harassment. The Probation Office

again moved to revoke Shenego’s supervised release. Shenego later pleaded guilty to one

1 The District Court later reduced Shenego’s sentence to 151 months of imprisonment under Dorsey v. United States, 567 U.S. 260 (2012). 2 count of simple assault and received a sentence of six to twenty-four months of

imprisonment.

The District Court subsequently held a revocation hearing, where Shenego

admitted to the violation of his terms of supervised release. As a result, the District Court

ordered Shenego’s supervised release revoked. The District Court imposed a below-

guideline sentence of fifteen months’ imprisonment, followed by an additional two-year

term of supervised release. The court noted its consideration of the § 3553(a) factors and

found that Shenego “engaged in serious criminal activity.” 2 Furthermore, because of his

“failure to abide by the conditions of supervised release,” the court found that Shenego

constituted a “danger to the community.” 3 Shenego appeals, challenging the

reasonableness of his sentence.

II. ANALYSIS 4

“[A]ppellate review of sentencing decisions is limited to determining whether they

are ‘reasonable.’” 5 We are “highly deferential” to district courts’ imposition of sentences

and review the “reasonableness of a revocation sentence for abuse of discretion.” 6 The

District Court abuses its discretion in imposing a sentence if it is either procedurally or

substantively unreasonable. 7

2 SAppx. 57. 3 SAppx. 57. 4 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. 5 Gall v. United States, 552 U.S. 38, 46 (2007). 6 United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007); United States v. Clark, 726 F.3d 496, 500 (3d Cir. 2013). 7 United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). 3 Shenego failed to preserve a claim of procedural reasonableness at sentencing and

waived the claim on appeal by failing in his opening brief to point to a procedural error. 8

Thus, the crux of Shenego’s claim is that his sentence is substantively unreasonable.

A sentence is substantively unreasonable where “no reasonable sentencing court

would have imposed the same sentence on that particular defendant for the reasons the

district court provided.” 9 An individual challenging the substantive reasonableness of a

sentence “carries a heavy burden” because “absent any significant procedural error, we

must give due deference to the district court’s determination that the § 3553(a) factors, on

a whole, justify the sentence.” 10 Where the District Court imposes a sentence either

within or, as here, below the guideline range, we may apply a presumption of

reasonableness that the challenger has the burden to rebut. 11

Shenego does not meet his burden because he cannot demonstrate that no

“reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” 12 The District Court imposed a

sentence on Shenego that was eighteen months below the lower end of the applicable

8 See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc) (“[A] defendant must raise any procedural objection to his sentence at the time the procedural error is made.”); Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 268 (3d Cir. 2019) (en banc) (“[A]n appellant’s opening brief must set fourth and address each argument the appellant wishes to pursue in an appeal.” (quoting Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017))). 9 Tomko, 562 F.3d at 568. 10 Id. at 568 (quotations omitted); Clark, 726 F.3d at 500. 11 Rita v. United States, 551 U.S. 338, 347–51 (2007); United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007); United States v. Handerhan, 739 F.3d 114, 124 (3d Cir. 2014). 12 Tomko, 562 F.3d at 568. 4 guideline range and adequately justified its sentence. As in Tomko, where we found the

district court acted reasonably, the District Court here “provided more than just a

boilerplate recitation of the § 3553(a) factors; it detailed, step-by-step, its individualized

assessment of the sentence that it believed appropriate in this particular case.” 13 The

court “gave due consideration when weighing all factors,” 14 and ultimately found that

Shenego’s sentence was “reasonable because it reflects the seriousness of his violations

of supervised release,” that Shenego was a “danger to the community,” and that he

“engaged in serious criminal activity.” 15

Shenego fails to demonstrate how a sentence far below the relevant guideline

range is unreasonable in light of the above findings. 16 After all, a “district court’s failure

to give mitigating factors the weight a defendant contends they deserve [does not]

render[] the sentence unreasonable.” 17 We may only reverse where we find that the

District Court abused its discretion. 18 We do not find that it did so here.

III. CONCLUSION

For the above reasons, we will affirm the judgment of the District Court.

13 Id. at 571. 14 United States v. DaCruz-Mendes, 970 F.3d 904, 910 (8th Cir. 2020). 15 SAppx. 57–58. 16 See United States v. Cordero, 609 F. App’x 73, 78 (3d Cir. 2015) (upholding a sentence as substantively reasonable in light of the court’s recognition of the particular seriousness of the crime); United States v. Pawlowksi, 27 F.4th 897, 912 (3d Cir. 2022) (upholding a within guideline sentence where the District Court “reasonably concluded that [defendant’s] offense was very serious, ‘strik[ing] at the core of our democracy’”). 17 Bungar, 478 F.3d at 546. 18 See Tomko, 562 F.3d at 574. 5