United States of America v. CHYQUIN AUSTIN a/k/a Q.B. a/k/a LITTLE HOMIE Chyquin Austin

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2258
UNITED STATES OF AMERICA
v.
CHYQUIN AUSTIN
a/k/a Q.B.
a/k/a LITTLE HOMIE
Chyquin Austin,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 03-cr-00844-22)
District Judge: Honorable Katharine S. Hayden
Submitted Under Third Circuit LAR 34.1(a)
January 27, 2009
Before: SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges
(Opinion filed : February 10, 2009)
OPINION
AMBRO, Circuit Judge
Chyquin Austin pled guilty to two racketeering counts based on his involvement in

-- 1 of 13 --

This type of violent attack is not uncommon within the Bloods. The formal gang1
structure allows senior leadership to control the criminal activity that members of the
gang carry out. If another gang member is suspected of “snitching,” or cooperating with
law enforcement, gang members incarcerated in the same facility as the “snitch” may be
ordered to retaliate against that target. The retaliation may include killing or slashing the
face of the target. Here, Austin and other Double II Bloods incarcerated in the Essex
County Jail were ordered by more senior gang members to attack one of their own who
was believed to be a “snitch.” They beat the person to unconsciousness and Austin
repeatedly slashed his face. The resulting scars indicate to gang members, among others,
that he is a “snitch.” Austin admitted to these facts during his guilty plea colloquy.
He was sentenced to concurrent terms of 55 months’ imprisonment and three-years’2
supervised release on the racketeering count in violation of 18 U.S.C. § 1959(a)(3) and 2,
and 36 months’ imprisonment and one-year supervised release on the conspiracy
racketeering count in violation of § 1959(a)(6).
The 30 months spanned the time from Austin’s arrest in late October 2004 to his3
sentencing date on April 18, 2007. He was indicted by a federal grand jury on February
10, 2005 as part of a 66-count Second Superseding Indictment. The Indictment charged
numerous Double II Bloods’ gang members with a wide range of violent and drug-related
2
a violent gang-related crime. Since 2002, Austin had been a member of an Essex County,
New Jersey street gang known as the Double II Bloods, which is a sect of the Bloods, a
nationwide gang. During a stint at the Essex County Jail in August 2003, he brutally
slashed the face of a fellow gang member.1
Austin appeals his sentence of 55 months’ imprisonment and three-years’
supervised release. The Government contends the sole issue Austin presents on appeal2
is whether his three-year term of supervised release was reasonable. Austin’s argument is
not that straightforward, however. His appeal pertains to the 30 months he spent
incarcerated in the Passaic County, New Jersey Jail (the “PCJ”) between his arrest and
sentencing. For purposes of appealing his sentence, Austin requests relief from his3

-- 2 of 13 --

racketeering crimes. Many of these defendants spent significant time at the PCJ awaiting
sentencing. Austin was one of the first defendants to plead guilty in December 2005. In
2006, while in the PCJ awaiting sentencing, Austin filed two motions for speedy
sentencing and dismissal, which were dismissed by the District Court.
It had subject matter jurisdiction under 18 U.S.C. § 3231. We have appellate4
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
3
supervised release term because he is set to be released from prison in May 2009. He
further contends that “[t]he District Court unreasonably did not consider the conditions at
[the PCJ] at all in setting the term of supervised release at three years.” Although this
argument specifies only his supervised release, the substance of his appellate brief also
discusses the unreasonableness of his term of imprisonment in light of the “squalid
conditions” at the PCJ.
This appears to conflate two arguments. See United States v. Jackson, 523 F.3d
234, 24–41 (3d Cir. 2008) (explaining that in appealing a sentence, a defendant can
challenge only his supervised release, only his imprisonment, or both). We view Austin’s
challenge to his sentence in two parts, both related to the conditions at the PCJ: (1)
whether his term of imprisonment was unreasonable; and (2) whether his term of
supervised release was unreasonable. We hold that both were reasonable, and thus affirm
the District Court.4
I.
At the sentencing hearing, the District Court heard arguments from both parties
concerning Austin’s request for a downward departure based on the 30 months he spent in

-- 3 of 13 --

4
the PCJ and its notoriously poor conditions of confinement. Austin’s argument to the
Court was somewhat confusing, but we interpret it in the same manner it appears the
District Court did—as an argument for a formal downward departure from the federal
Sentencing Guidelines’ range under U.S. Sentencing Guidelines Manual (hereinafter
“U.S.S.G.”) § 5K2.0 (“Grounds for Departure (Policy Statement)”), and alternatively as
an argument for a downward variance on the same ground based on the advisory nature of
the Guidelines post-Booker.
Austin’s counsel did not provide specific details regarding Austin’s term of
confinement and the conditions he endured at the PCJ. Instead, counsel referred to a
newspaper article and letters sent by Austin to the Court concerning the conditions at the
PCJ. He also relayed Austin’s eagerness to serve his sentence in a Bureau of Prisons’
facility so that he would have the opportunity to take advantage of the educational
opportunities it offers and to earn good-time credits. Counsel highlighted that Austin
obtained a GED while incarcerated despite the limited opportunities at the PCJ.
The Government argued that Austin’s reasons were not sufficient to warrant a
downward departure or variance. Although its position was that the Court should not
consider the PCJ confinement in sentencing Austin, it acknowledged that the conditions
at the PCJ were bad, and if the Court chose to take this into consideration it should only

-- 4 of 13 --

The Guidelines’ range was based on Austin’s criminal history category of III and total5
offense level of 22. Austin does not dispute this calculation.
5
do so in determining a proper sentence within the Guidelines’ range of 51 to 63 months.5
The Court acknowledged that it was aware of the tough conditions for inmates at
the PCJ, yet it declined to depart downward on this basis. It agreed to “consider [Austin’s
time at the PCJ] as part of the history and characteristics of the defendant’s portion of the
sentencing statute” under 18 U.S.C. § 3353(a). In considering the § 3353(a) factors, the
Court lauded Austin’s GED achievement, “even in deplorable conditions in [the PCJ],”
and noted his intentions for his future and the family members who cared about him. This
was outweighed, however, by, among other things, the “savage nature” of the offense. It
determined that a within-Guidelines’ sentence was appropriate, but the top of the
Guidelines’ range was “heavier than is necessary considering [Austin’s] history and
characteristics.” The Court concluded that the appropriate sentence of imprisonment was
in the mid-range of the Guidelines, 55 months, which meant Austin would serve
approximately two years in prison after crediting his time in the PCJ.
The Court then considered the appropriate term of supervised release. The
statutory maximum was three years. See 18 U.S.C. § 3583(b)(2), (e)(1). The Guidelines
state that a district court “shall order a term of supervised release to follow imprisonment
when a sentence of imprisonment of more than one year is imposed,” and recommends
between two and three years of supervised release. U.S.S.G. §§ 5D1.1(a), 5D1.2(a)(2).

-- 5 of 13 --

6
The Court discussed Austin’s possible opportunities post-prison. Its most serious
concern was the risk of Austin getting pulled back into gang life after his release from
prison. It noted that he was an attractive gang prospect because of his height,
intelligence, and good looks. It hoped that Austin would further progress during his
remaining incarceration period so that he could “get some skills and get . . . independent
of needing the gang life to earn money and to feel good about [him]self.” To help prevent
a return to the gang and encourage a law-abiding life, the Court imposed the maximum
period of supervised release, three years, and added specific conditions. These conditions
included drug testing and drug treatment, a prohibition on frequenting known “Blood”
locations, wearing or possessing gang clothing and paraphernalia, and associating with
any gang members. Austin’s counsel did not object to the Court’s imposed term of
supervised release.
II.
“Under post-Booker jurisprudence, we review not only a term of imprisonment,
but also a term of supervised release[,] for reasonableness.” Jackson, 523 F.3d at 241
(discussing that imprisonment and supervised release are parts of a defendant’s total
sentence). The Guidelines are now advisory, and our reasonableness review of the
District Court’s sentence is a “deferential abuse of discretion standard.” United States v.
Gunter, 527 F.3d 282, 284 (3d Cir. 2008) (citing Gall v. United States, 128 S.Ct. 586,
597–98 (2007)). For a sentence to be procedurally reasonable, sentencing judges must

-- 6 of 13 --

7
follow a three-step sentencing process: (1) calculate the defendant’s Guidelines’ sentence;
(2) rule on motions of both parties and “state on the record whether they are granting a
departure and how that departure affects the Guidelines calculation”; and (3) “exercise
their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors in setting the
sentence they impose regardless whether it varies from the sentence calculated under the
Guidelines.” Id. (internal quotations omitted) (alteration in original) (quoting United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)).
“Assuming that the district court’s sentencing decision is procedurally sound, the
appellate court should then consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall, 128 S.Ct. at 597. It is “less likely
that a within-[G]uidelines’ sentence, as opposed to an outside-[G]uidelines’ sentence, will
be unreasonable.” United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006). “As long
as a sentence falls within the broad range of possible sentences that can be considered
reasonable in light of the § 3553(a) factors, we must affirm.” United States v. Wise, 515
F.3d 207, 218 (3d Cir. 2008) (citation omitted).
III.
Before assessing the merits of Austin’s claims relating to the reasonableness of his
term of incarceration, we address a potential jurisdiction issue. Austin’s counsel states
that “it is too late for [Austin] to benefit from a reduction in his term of incarceration.
Instead, [he] seeks relief as to the supervised release component of his sentence.” As

-- 7 of 13 --

A defendant who is serving a term of supervised release and challenges his completed6
sentence of imprisonment must show collateral consequences to present a live case or
controversy under Article III of the Constitution. Jackson, 523 F.3d at 241. In Jackson,
we held that collateral consequences include “the possibility of a credit for improper
imprisonment against a term of supervised release.” Id. (citing United States v. Cottman,
142 F.3d 160, 165 (3d Cir. 1998)); see also United States v. Prochner, 417 F.3d 54, 59
n.4 (1st Cir. 2005) (holding that although the defendant was released from prison, his
appeal was not moot because he is serving a term of supervised release as part of his
sentence). Jackson recognized that other circuits are split on this issue, but found support
for its holding in United States v. Johnson, 529 U.S. 53, 60 (2000):
The trial court, as it sees fit, may modify an individual’s conditions of
supervised release. [18 U.S.C.] § 3583(e)(2). Furthermore, the court may
terminate an individual’s release obligations “at any time after the expiration
of one year . . . if it is satisfied that such action is warranted by the conduct of
the defendant released in the interest of justice.” [18 U.S.C.] § 3583(e)(1).
523 F.3d at 239 (alterations in original) (quoting Johnson, 529 U.S. at 60). Thus, if a
defendant is serving a sentence of supervised release during the pendency of his appeal, a
challenge to an unreasonably long sentence (or term of imprisonment) would not be moot.
8
noted, Austin is scheduled to be released in May 2009. In challenging his sentence,
Austin was not certain whether he would still be imprisoned during the pendency of his
appeal. We note that if his term of imprisonment was complete, we would have to
consider whether his appeal is moot or the doctrine of “collateral consequences” applies
to give us jurisdiction. Since Austin is still incarcerated at this point, his present6
circumstance raises no question whether we have jurisdiction to consider a challenge to
his term of imprisonment.
At sentencing, Austin briefly argued for a downward departure on the basis of the
Guidelines’ section setting out the general grounds for departures. U.S.S.G. § 5K2.0(a)

-- 8 of 13 --

We take note that several district courts (although only in non-published opinions)7
have determined that extraordinary conditions of confinement potentially warrant a
downward departure, even though pretrial confinement is not a factor listed in the
Sentencing Guidelines. See, e.g., Pelaez v. United States, No. 08-0600, 2008 WL
4004573, at *4 (D.N.J. Aug. 25, 2008) (not for publication); Isaza v. United States, No.
06-2687, 2007 WL 2226015, at *3 (D.N.J. Aug. 1, 2007) (not for publication). The
Supreme Court recognized in Koon v. United States that factors not mentioned in the
Guidelines can serve as a basis for a downward departure, but these departures will be
“highly infrequent.” 518 U.S. 81, 93–96 (1996). A departure based on the unusual and
deplorable conditions of the defendant’s pretrial detainment is “highly infrequent.”
Pelaez, 2008 WL 4004573, at *4; see also United States v. Sutton, 973 F. Supp. 488, 493
(D.N.J. 1997) (“Unusual pretrial confinement, . . . in either length or severity of
condition, can properly be considered by the sentencing court.”). Pelaez cited several
district court decisions from our Circuit to demonstrate the infrequency of the departure,
including the highly unusual circumstances endured by those defendants who have
received a departure (e.g., being subject to physical or sexual abuse while in prison), and
the circumstances in which defendants were not granted a departure (e.g., a defendant
spent one year in a deplorable Columbian prison, which was overcrowded, had no
running water, and an infestation of rodents). Pelaez, 2008 WL 4004573, at *4.
The District Court reached a similar conclusion in two subsequent cases. See United8
States v. Ortiz, Nos. 06-858 & 07-256, 2007 WL 4208802 (D.N.J. Nov. 27, 2007)
9
(referencing 18 U.S.C. § 3553(b)). The District Court declined to exercise its discretion
to depart downward. We therefore lack jurisdiction to review that discretionary decision.7
United States v. Minutoli, 374 F.3d 236, 239 (3d Cir. 2004).
Austin also argues, albeit indirectly, that the District Court’s decision not to vary
from the Guidelines in consideration of the § 3553(a) factors was unreasonable. He
supports his argument by comparing his circumstances at the PCJ to those in United
States v. Sutton, No. 07-426, 2007 WL 3170128 (D.N.J. Oct. 25, 2007). In Sutton, the
same District Court held an extensive hearing and granted the defendant a variance below
the Guidelines’ range based on the conditions at the PCJ. Id. at *9 (stating “the logical8

-- 9 of 13 --

(supplemental opinion) (supplementing its sentencing decisions that granted downward
variances for two defendants in unrelated cases, Ortiz and Garcia-Pagador, of 8 and 12
months, respectively, to match the time each defendant spent at the PCJ and relying on
the § 3553(a) factors after extensive sentencing hearings concerning the PCJ conditions).
The Court stated that “[i]n the future, this Court will entertain an application by a
defendant facing sentencing who was a pre-trial detainee at the [PCJ], to incorporate the
prior testimony about jail conditions into the record at his or her sentencing.” Id. at *6.
The Court noted that a “formulaic approach” to this issue is not appropriate and “[t]his
does not mean that conditions in [the PCJ] are the only considerations to be weighed by a
sentencing judge.” Id.
10
way of acknowledging [the defendant] was punished ‘more than was necessary’ under
conditions that violate one of the goals of a reasonable sentence[] is to reduce the extent
of the overall sentence he must serve”). The Court attributed its variance decision to
§ 3553(a) factors (2)(A) and (D). Id. at *8–9; see also 18 U.S.C. § 3553(a)(2)(A), (D)
(addressing “the need for the sentence imposed . . . (A) . . . to promote respect for the
law . . . [and] (D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment”).
Here, the Court discussed Austin’s argument about conditions at the PCJ,
acknowledging the severity of the problem at that facility. It determined, however, that
Austin’s violent gang-related offense was too serious to warrant a variance from the
Guidelines’ range. Instead, it took the PCJ conditions and other factors into account in
concluding that a top of the Guidelines’ range sentence would be more punishment than
necessary, but a mid-range Guidelines’ sentence was appropriate for Austin based on the
§ 3553(a) sentencing factors. It made an “individualized assessment based on the facts

-- 10 of 13 --

11
presented.” Gall, 128 S.Ct. at 597. In this context, Austin’s sentence of 55 months’
imprisonment was reasonable and the Court did not abuse its discretion in setting this
within-Guidelines’ sentence.
IV.
Austin’s second challenge is to his three-year term of supervised release. He
argues that the District Court erred because it “gave no weight to the conditions of
confinement in assessing how long [he] would serve on supervised relief.” At sentencing,
Austin argued for a reduced term of imprisonment based on his incarceration at the PCJ,
but did not object to the term of supervised release on similar, or any, grounds.
Therefore, our reasonableness review of the Court’s term of supervised release is for
plain error. A defendant must satisfy a four-prong test to be successful under plain error
review: there is (1) an error; (2) that is plain; (3) which affects substantial rights; and (4)
seriously impairs the fairness, integrity, or public reputation of judicial proceedings.
United States v. Olano, 507 U.S. 725, 732 (1993).
Although it appears Austin is correct that at the sentencing hearing the Court did
not give any weight to this factor in determining his term of supervised release, it did not
err, much less plainly err, in failing to do so. “Sentencing courts, in determining the
conditions of a defendant’s supervised release, are required to consider” the applicable
§ 3553(a) factors. United States v. Johnson, 529 U.S. 53, 59–60 (2000); see also 18
U.S.C. § 3583(c). “[I]mprisonment and supervised release are designed to serve very

-- 11 of 13 --

12
different purposes.” United States v. Joseph, 109 F.3d 34, 38 (1st Cir. 1997) (citations
omitted). The term and conditions of supervised release “illustrate that [], unlike
incarceration, [it] provides individuals with postconfinement assistance.” Johnson, 529
U.S. at 60 (citation omitted). “Congress intended supervised release to assist individuals
in their transition to community life. Supervised release fulfills rehabilitative ends,
distinct from those served by incarceration.” Id. at 59 (citations omitted). Unlike the
length of a term of imprisonment, the length of a term of supervised release is not based
on a defendant’s offense level or advisory Guidelines’ range, but rather on the grade of
the defendant’s crime (e.g., the class of felony). See 18 U.S.C. § 3583(b).
At sentencing, the Court went into detail about its purpose for giving Austin the
statutory maximum of three years’ supervised release and why it added specific
conditions to his term. It was concerned about supporting his transition back into the
community as a law-abiding citizen and preventing a relapse to gang life. In this context,
Austin’s conditions of confinement at the PCJ did not relate to the underlying purpose of
supervised release, and thus did not need to be addressed by the Court. Moreover, when
it discussed supervised release at the sentencing hearing, Austin did not raise this
argument. The Court is not required to address an argument sua sponte, or one, such as
this, that is clearly not persuasive. See Cooper, 437 F.3d at 329. We thus conclude that
the Court gave “meaningful consideration” to the applicable § 3553(a) factors. See
Gunter, 527 F.3d at 284 (quoting Cooper, 437 F.3d at 329).

-- 12 of 13 --

13
CONCLUSION
For these reasons, we conclude that Austin’s sentence was reasonable. We thus
affirm the District Court’s sentence.

-- 13 of 13 --