Third Circuit disposition — 055266np-pdf

1The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-5266
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UNITED STATES OF AMERICA,
Appellee,
vs.
BROCK KOLLER
Appellant.
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On Appeal from the United States District Court
For the Middle District of Pennsylvania
(No. 04-MC-311)
District Judge: Honorable Yvette Kane
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 27, 2006
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Before: FUENTES and GARTH, Circuit Judges, and POLLAK, District Judge 1
(Opinion Filed: December 1, 2006)
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OPINION
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2Fed. R. Crim. P. 35(b) provides:
Reducing a Sentence for Substantial Assistance.
(1) In General. Upon the government's motion
made within one year of sentencing, the court
may reduce a sentence if: (A) the defendant, after
sentencing, provided substantial assistance in
investigating or prosecuting another person; and
(B) reducing the sentence accords with the
Sentencing Commission's guidelines and policy
statements.
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GARTH, Circuit Judge:
Appellant Brock Koller appeals from a twelve month sentence he received upon
the revocation of a term of supervised release imposed as a result of a prior narcotics
conviction. We will affirm.
I.
On July 17, 2002, Koller pleaded guilty in the Western District of Pennsylvania to
conspiring to distribute drugs in violation of 21 U.S.C. § 846. Koller was initially
sentenced to 37 months’ imprisonment and a three-year term of supervised release.
However, Koller’s term of imprisonment was later reduced to 15 months pursuant to a
motion by the government under Fed. R. Crim. P. 35(b). 2 Koller began serving his three-
year term of supervised release on May 18, 2004. For reasons that are not clear from the
record, supervision of Koller’s case was subsequently transferred to the Middle District of
Pennsylvania.
In October 2004, while in Pittsburgh on approved travel, Koller was arrested and

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charged with drunk driving. He pleaded guilty in state court. As a result of this incident,
his conditions of supervised release on the drug crime were modified to include 50 hours
of community service.
On July 5, 2005, Koller was again arrested, this time in Ocean County, Maryland,
for driving with a suspended license, driving at an excessive speed, and failing to display
his license on demand. Prior to this incident, Koller had requested but had been
specifically denied permission to travel to Maryland on three occasions. On the same
day, Maryland police notified Koller’s probation officer of the arrest. Koller
subsequently failed to attend an August 16, 2005 hearing on the charges resulting from
the July 5, 2005 traffic stop.
On September 13, 2005, the United States Probation Office filed a Petition for
Warrant or Summons for Offender Under Supervision against Koller. The Petition cited
Koller for violating several conditions of his supervised release, including (1) the
defendant shall not commit another federal, state or local crime; (2) the defendant shall
not leave the judicial district without the permission of the court or probation officer; (3)
the defendant shall report to the probation officer as directed; and (4) the defendant shall
notify the probation officer within seventy-two hours of being arrested or questioned by a
law enforcement officer. Koller was taken into custody on September 22, 2005.
On November 1, 2005, the district court conducted a supervised release revocation
hearing. Koller admitted the violations set forth in the supervised release Petition, and the
matter proceeded directly to sentencing. The parties agreed that the guidelines range was

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three to nine months. The government asked for an upward departure, to twelve months
imprisonment, pursuant to U.S.S.G. § 7B1.4, based upon the fact that Koller’s 15 month
sentence was “substantially less than the 37 months that he might otherwise have
received” if not for the downward departure he initially received as a result of the
government’s motion pursuant to Fed. R. Crim. P. 35(b). The district court revoked
Koller’s supervised release and sentenced Koller to twelve months, stating:
Mr. Koller, I don’t know enough about your
history to know how it is you came to find
yoursef in this place, but it’s indeed unfortunate.
The records that I have that were transferred here
from the Western District do show . . . a
significant break in your original sentencing in the
case.
. . . .
And it’s also no secret that these are not just
technical violations. You are a flagrant violator,
and you haven’t shown a lot of respect for the
probation office or for the other authorities that
are associated with the court.
This is kind of the end of the road. You
obviously have some kind of substance abuse
problem, an alcohol problem, maybe a drug
problem. I don’t know because I don’t know you.
But I do know that you need to get your act
together or you’re going to be back. I don’t really
have any choice but to revoke your supervised
release.
. . . .
The court finds that the defendant, Brock Koller,
has violated the conditions of supervised release
and therefore revokes the defendant’s term of
supervised release.
Pursuant to the Sentencing Reform Act of 1984
and after having considered the policy statements
in Chapter 7 of the Sentencing Guidelines, as well

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as the factors listed in 18 U.S.C. § 3553, it’s the
judgment of this court that the defendant is hereby
committed to the custody of the Bureau of Prisons
to be imprisoned for a term of 12 months.
II.
We have jurisdiction to review Koller’s sentence under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a)(1). See United States v. Cooper, 437 F.3d 324, 328 (3d Cir. 2006). We
review the sentence imposed by the district court for reasonableness. United States v.
Booker, 543 U.S. 220, 261 (2005); Cooper, 437 F.3d at 327.
Koller claims that the twelve-month sentence imposed by the district court was
unreasonable because, he asserts, the district court failed to properly familiarize itself
with Koller’s “background and history” as required by 18 U.S.C. § 3553(a). When a
district court imposes a longer prison sentence in a revocation of supervised release
proceeding, it must consider the now advisory sentencing range under U.S.S.G. §
7B1.4(a)(providing the “range of imprisonment applicable upon revocation”), as well as
“state on the record its general reasons under section 3553(a) . . . for imposing a more
stringent sentence.” United States v. Blackston, 940 F.2d 877, 894 (3d Cir.
1991)(emphasis in original).
The district court need not make specific findings with respect to each of the
section 3553(a) factors that it considered. Cooper, 437 F.3d at 329. Rather, the court
must simply give meaningful consideration to the section 3553(a) factors and address any
argument raised by a party that has recognized legal merit. Id.

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We find that the district court adequately complied with these principles. The
district court found that Koller had flagrantly violated the conditions of his supervised
release by traveling outside the district after being warned three times against doing so;
by committing crimes in October 2004 and July 2005; and by failing to report to his
parole officer as required. Koller further aggravated these offenses by refusing to provide
proper identification at the time of his July 2005 arrest.
The district court also noted that Koller had received a “significant break” with
respect to his original sentence, which was reduced from 37 to 15 months for providing
substantial assistance in the criminal investigation. The commentary to U.S.S.G. §
7B1.4(a) provides that “[w]here the original sentence was the result of a downward
departure (e.g., as a reward for substantial assistance), or a charge reduction that resulted
in a sentence below the guideline range applicable to the defendant's underlying conduct,
an upward departure may be warranted.” Id. cmt n.4. This provides yet further support
for the district court’s moderate upward departure.
Koller cites two statements of the district court to support his argument that the
district court failed to adequately consider the section 3553 sentencing factors. Koller
argues that the district court’s statement “I don’t know enough about your history to know
how it is you came to find yourself in this place” shows that the district court failed to
consider the “history and characteristics of the defendant” as required under § 3553(1).
Koller also asserts that the district court wrongly concluded that he “obviously ha[s] some
kind of substance abuse problem,” when he in fact tested negative for drugs throughout

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his period of supervision.
Contrary to Koller’s contentions, these remarks do not reflect any failure of the
district court to adequately familiarize himself with the “nature and circumstances of the
offense” or Koller’s “history and characteristics.” § 3553(a). A complete review of the
record shows that the district court made a fully informed sentencing determination,
reaching its decision only after finding that the flagrant nature of the offense, the
diminished sentence originally imposed, and Koller’s history and background warranted
the twelve-month sentence. Upon review we cannot say this sentence was unreasonable.
III.
The judgment of the district court, revoking Koller’s supervised release and
imposing a twelve-month sentence will be affirmed.

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