NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 22-2175 ______________
UNITED STATES OF AMERICA
v.
ROCMON L. SANDERS, Appellant ______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cr-00431-001) U.S. District Judge: Honorable Gene E.K. Pratter ______________
Submitted Under Third Circuit L.A.R. 34.1(a) April 6, 2023 ______________
Before: SHWARTZ, MONTGOMERY-REEVES, and ROTH, Circuit Judges.
(Filed; April 6, 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. SHWARTZ, Circuit Judge.
Rocmon Sanders appeals his sentence for video voyeurism and criminal contempt.
Because the District Court committed plain error by sentencing Sanders to four days’
imprisonment beyond the statutory maximum period, we will vacate the sentence and
remand.
I
Sanders was initially indicted for manufacturing and attempting to manufacture
child pornography, in violation of 18 U.S.C. § 2251(a) and (e), after he surreptitiously
recorded his girlfriend’s fifteen-year-old daughter while she was bathing. Sanders was
detained pending trial. The District Court issued a “no contact order” prohibiting Sanders
from contacting the minor or her mother, with the limited exception that Sanders could
have in-person contact with the mother in the presence of a third-party observer. Sanders
repeatedly violated this order by emailing and calling the mother while detained.
Three and a half years after the initial indictment, Sanders pleaded guilty to a two-
count superseding information charging him with video voyeurism, in violation of 18
U.S.C. § 1801, and contempt of court, in violation of 18 U.S.C. § 401(3), due to his
violation of the no contact order. Video voyeurism carries a maximum sentence of one
year imprisonment and one year supervised release, 18 U.S.C. § 1801(a), while the
2 contempt charge in this case carried a maximum sentence of six months’ imprisonment. 1
Before sentencing, the District Court directed Sanders to work with the Probation
Office to secure a place in a Residential Reentry Center (“RRC”) upon his release. At the
sentencing hearing, Sanders explained that because the Probation Office had informed
him that a placement in a RRC would take several days, he had arranged to stay with a
friend named “Dawoo.” However, because Sanders was unable to provide the Court with
Dawoo’s full name or address, and Dawoo did not attend the hearing, the Court rejected
this proposed temporary living arrangement.
The Court then considered the 18 U.S.C. § 3553(a) sentencing factors, noting the
seriousness of the offense, the “terrible impact on the victim,” App. 256, Sanders’
criminal history, and his lack of remorse. The Court also acknowledged, however, that
“the law prohibits a longer period of incarceration than [Sanders has] already served”
based on the statutory maximums, App. 255, and that it could impose at most one year of
supervised release. Based on these considerations, the Court sentenced Sanders to time
served “plus those few days, no more than four, that are necessary to secure a bed for Mr.
Sanders in a [RRC].” App. 262. The Court also imposed one year of supervised release
with special conditions mandating that Sanders (1) reside at a RRC immediately upon
release for a period not to exceed 120 days, (2) have no contact with the minor and only
1 Although 18 U.S.C. § 401(3) does not provide a statutory maximum for contempt, as part of the plea agreement, the parties agreed to treat the contempt charge as a petty offense punishable by up to six months’ imprisonment, 18 U.S.C. § 3559(a)(7). 3 contact the minor’s mother through a probation officer after application to the Court, (3)
undergo mental health evaluation and treatment, and (4) submit to drug testing. Sanders
was released to a RRC in Philadelphia four days later.
Sanders appeals his sentence. 2
II3
Sanders asserts that the District Court erred in sentencing him to an additional four
days of incarceration and requests that we vacate the remainder of his period of
supervised release as an equitable remedy for this error. Because Sanders did not raise
this issue with the District Court, we review it for plain error. Fed. R. Crim. P. 52(b);
United States v. Payano, 930 F.3d 186, 191-92 (3d Cir. 2019).
In reviewing for plain error, we must decide whether “(1) an error occurred,
(2) the error is ‘plain,’ and (3) it ‘affect[s] substantial rights.’” Payano, 930 F.3d at 192
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). If these conditions are met,
2 Even though Sanders completed his term of incarceration, this appeal is not moot as he is still serving his term of supervised release. United States v. Jackson, 523 F.3d 234, 241 (3d Cir. 2008) (“[A] live case or controversy . . . arises when a defendant challenges the sentence he is currently serving.”); United States v. Prophet, 989 F.3d 231, 235 (3d Cir. 2021) (explaining that the sentence includes both the “term of imprisonment and [the] term of supervised release” (citation omitted) (emphasis omitted)). Sanders seeks to reduce his term of supervised release based upon his improper imprisonment. Because Sanders “is directly challenging the sentence he is currently serving,” and there is a “possibility of a credit for improper imprisonment against a term of supervised release,” the appeal is not moot. Prophet, 989 F.3d at 235-36 (quoting Jackson, 523 F.3d at 241). 3 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 4 “a court of appeals should exercise its discretion to correct the error if it would ‘seriously
affect[] the fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting
Olano, 507 U.S. at 732).
These requirements are satisfied here. First, the maximum penalty for video
voyeurism is one year, 18 U.S.C. § 1801(a), and the maximum penalty for contempt in
this case is six months.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 22-2175 ______________
UNITED STATES OF AMERICA
v.
ROCMON L. SANDERS, Appellant ______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cr-00431-001) U.S. District Judge: Honorable Gene E.K. Pratter ______________
Submitted Under Third Circuit L.A.R. 34.1(a) April 6, 2023 ______________
Before: SHWARTZ, MONTGOMERY-REEVES, and ROTH, Circuit Judges.
(Filed; April 6, 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. SHWARTZ, Circuit Judge.
Rocmon Sanders appeals his sentence for video voyeurism and criminal contempt.
Because the District Court committed plain error by sentencing Sanders to four days’
imprisonment beyond the statutory maximum period, we will vacate the sentence and
remand.
I
Sanders was initially indicted for manufacturing and attempting to manufacture
child pornography, in violation of 18 U.S.C. § 2251(a) and (e), after he surreptitiously
recorded his girlfriend’s fifteen-year-old daughter while she was bathing. Sanders was
detained pending trial. The District Court issued a “no contact order” prohibiting Sanders
from contacting the minor or her mother, with the limited exception that Sanders could
have in-person contact with the mother in the presence of a third-party observer. Sanders
repeatedly violated this order by emailing and calling the mother while detained.
Three and a half years after the initial indictment, Sanders pleaded guilty to a two-
count superseding information charging him with video voyeurism, in violation of 18
U.S.C. § 1801, and contempt of court, in violation of 18 U.S.C. § 401(3), due to his
violation of the no contact order. Video voyeurism carries a maximum sentence of one
year imprisonment and one year supervised release, 18 U.S.C. § 1801(a), while the
2 contempt charge in this case carried a maximum sentence of six months’ imprisonment. 1
Before sentencing, the District Court directed Sanders to work with the Probation
Office to secure a place in a Residential Reentry Center (“RRC”) upon his release. At the
sentencing hearing, Sanders explained that because the Probation Office had informed
him that a placement in a RRC would take several days, he had arranged to stay with a
friend named “Dawoo.” However, because Sanders was unable to provide the Court with
Dawoo’s full name or address, and Dawoo did not attend the hearing, the Court rejected
this proposed temporary living arrangement.
The Court then considered the 18 U.S.C. § 3553(a) sentencing factors, noting the
seriousness of the offense, the “terrible impact on the victim,” App. 256, Sanders’
criminal history, and his lack of remorse. The Court also acknowledged, however, that
“the law prohibits a longer period of incarceration than [Sanders has] already served”
based on the statutory maximums, App. 255, and that it could impose at most one year of
supervised release. Based on these considerations, the Court sentenced Sanders to time
served “plus those few days, no more than four, that are necessary to secure a bed for Mr.
Sanders in a [RRC].” App. 262. The Court also imposed one year of supervised release
with special conditions mandating that Sanders (1) reside at a RRC immediately upon
release for a period not to exceed 120 days, (2) have no contact with the minor and only
1 Although 18 U.S.C. § 401(3) does not provide a statutory maximum for contempt, as part of the plea agreement, the parties agreed to treat the contempt charge as a petty offense punishable by up to six months’ imprisonment, 18 U.S.C. § 3559(a)(7). 3 contact the minor’s mother through a probation officer after application to the Court, (3)
undergo mental health evaluation and treatment, and (4) submit to drug testing. Sanders
was released to a RRC in Philadelphia four days later.
Sanders appeals his sentence. 2
II3
Sanders asserts that the District Court erred in sentencing him to an additional four
days of incarceration and requests that we vacate the remainder of his period of
supervised release as an equitable remedy for this error. Because Sanders did not raise
this issue with the District Court, we review it for plain error. Fed. R. Crim. P. 52(b);
United States v. Payano, 930 F.3d 186, 191-92 (3d Cir. 2019).
In reviewing for plain error, we must decide whether “(1) an error occurred,
(2) the error is ‘plain,’ and (3) it ‘affect[s] substantial rights.’” Payano, 930 F.3d at 192
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). If these conditions are met,
2 Even though Sanders completed his term of incarceration, this appeal is not moot as he is still serving his term of supervised release. United States v. Jackson, 523 F.3d 234, 241 (3d Cir. 2008) (“[A] live case or controversy . . . arises when a defendant challenges the sentence he is currently serving.”); United States v. Prophet, 989 F.3d 231, 235 (3d Cir. 2021) (explaining that the sentence includes both the “term of imprisonment and [the] term of supervised release” (citation omitted) (emphasis omitted)). Sanders seeks to reduce his term of supervised release based upon his improper imprisonment. Because Sanders “is directly challenging the sentence he is currently serving,” and there is a “possibility of a credit for improper imprisonment against a term of supervised release,” the appeal is not moot. Prophet, 989 F.3d at 235-36 (quoting Jackson, 523 F.3d at 241). 3 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 4 “a court of appeals should exercise its discretion to correct the error if it would ‘seriously
affect[] the fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting
Olano, 507 U.S. at 732).
These requirements are satisfied here. First, the maximum penalty for video
voyeurism is one year, 18 U.S.C. § 1801(a), and the maximum penalty for contempt in
this case is six months. At the time of sentencing, Sanders had been detained for three
years and nine months, well beyond the eighteen-month maximum period of
incarceration permitted for his crimes of conviction. Thus, the District Court erred by
sentencing Sanders to four additional days of incarceration beyond time served,4 and this
error was “plain.” See Olano, 507 U.S. at 734 (explaining that “‘[p]lain’ is synonymous
with ‘clear,’ or equivalently, ‘obvious’”). 5
Second, the error affected Sanders’ substantial rights. An error affects substantial
rights if it has “a prejudicial effect on the outcome of a judicial proceeding.” Payano, 930
F.3d at 192 (quotations and citation omitted). Here, the District Court’s error caused
4 The Government concedes that this sentence “exceeded the allowable terms by four days.” Appellee’s Br. at 17. 5 The PSR stated that the guideline range in this case was fifteen to eighteen months. Additionally, the District Court acknowledged at both the plea hearing and the sentencing hearing that it could not sentence Sanders to any term of incarceration beyond time served. 5 Sanders to serve more days in prison than permitted by the statutory penalties for his
crimes of conviction.
Finally, the error “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Olano, 507 U.S. at 726. The integrity of judicial proceedings is
affected when “courts refuse[] to correct obvious errors of their own devise that . . .
require individuals to linger longer in federal prison than the law demands.” Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1908 (2018)). That is what happened here. As
a result, we will exercise our discretion to cure the plain error by vacating and remanding
to the District Court for resentencing. The District Court is best suited to determine
whether a reduction in Sanders’ term of supervised release is warranted. See Payano, 930
F.3d at 199 (remanding where we could not discern whether the district court would have
granted an upward variance absent the error in calculating the statutory maximum); see
also United States v. Aguirre-Miron, 988 F.3d 683, 690 (3d Cir. 2021) (curing plain error
by vacating and remanding for resentencing). We offer no views on that subject.
III
For the foregoing reasons, we will vacate the District Court’s sentence and remand
for resentencing.