United States of America v. REGINALD GREENE a/k/a AMIN Reginald Greene

* Honorable Stewart Dalzell, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1088
UNITED STATES OF AMERICA
v.
REGINALD GREENE
a/k/a AMIN
Reginald Greene,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 1-07-cr-00693-001)
District Judge: Honorable Noel L. Hillman
Submitted Under Third Circuit LAR 34.1(a)
May 14, 2010
Before: BARRY, ROTH, Circuit Judges and DALZELL,* District Judge
(Opinion Filed: May 24, 2010)
OPINION

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1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
2 We note that the Honorable Stewart Dalzell, who sits by designation on this panel,
was the District Court Judge when, in 1999, Greene was convicted and sentenced in an
unrelated matter. We do not believe that this presents a conflict, and Greene does not
suggest that it does.
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BARRY, Circuit Judge.
Reginald Greene appeals from the sentence imposed by the District Court. We
will affirm.1
Because we write solely for the parties, we will not set forth the facts of the case
except as necessary to our decision. 2 In April 2008, Greene pled guilty, without a plea
agreement, to seven counts of wire fraud, in violation of 18 U.S.C. § 1343; one count of
conspiring to engage in money laundering, in violation of 18 U.S.C. § 1956(h); and one
count of money laundering, in violation of 18 U.S.C. § 1957(a). The charges stemmed
from Greene’s scheme to defraud a mortgage company by altering wire transfer
instructions to divert funds to himself and others.
At sentencing, the government urged the District Court to apply a two-level
enhancement under U.S.S.G. § 3C1.1 for obstruction of justice, alleging that Greene
instructed his former girlfriend to misrepresent the source of the diverted funds to the FBI
and providing grand jury testimony and FBI reports to support its request. This
enhancement had been originally recommended in Greene’s pre-sentence investigation

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report (“PSR”) but removed after he objected and the government failed to provide
evidence substantiating the enhancement. Greene, in turn, argued that the Probation
Officer improperly applied the 2008 Sentencing Guidelines (in effect at the time of
sentencing) rather than the 2002 Guidelines (in effect at the time of the offense conduct),
where the 2002 Guidelines provided for a lower base offense level. The Court adjourned
the sentencing hearing to allow for supplemental briefing and subsequently held a second
hearing at which it determined that it would apply the 2002 Guidelines, as well as the
two-level obstruction of justice enhancement. It calculated Greene’s offense level at 28.
With a criminal history category of VI, the applicable Guidelines range was 140-175
months imprisonment. Greene was sentenced to 172 months imprisonment, and timely
appealed.
Greene argues, first, that the government arbitrarily and unreasonably refused to
file a motion pursuant to U.S.S.G. § 5K1.1, which provides: “Upon motion of the
government stating that the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed an offense, the court
may depart from the guidelines.” Section 5K1.1 “gives the Government a power, not a
duty, to file a motion when a defendant has substantially assisted.” Wade v. United
States, 504 U.S. 181, 185 (1992). District courts have authority to review the
government’s discretionary decision not to file a § 5K1.1 motion and may “grant a
remedy if they find that the refusal was based on an unconstitutional motive” or when its
“refusal to move was not rationally related to any legitimate Government end.” Id. at

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185-86; see also United States v. Abuhouran, 161 F.3d 206, 211-12 (3d Cir. 1998). We
have reviewed the record and conclude without further discussion, for reasons of which
the parties are aware, that the government’s decision not to file a § 5K1.1 motion was not
based on an unconstitutional motive and was clearly related to a legitimate government
end. Greene’s argument to the contrary is without merit.
Greene argues, next, that the District Court improperly applied the obstruction of
justice enhancement because the government’s request for it was untimely. See Fed. R.
Crim. P. 32(f)(1) (requiring parties to make objections to a PSR within fourteen days of
receipt). A court may, however, for good cause permit parties to make objections at any
time before sentence is imposed. Fed. R. Crim. P. 32(i)(1)(D). We reject Greene’s
argument for two reasons. First, he was not prejudiced by the timing of the government’s
request. The issue was raised in the government’s sentencing memorandum, and Greene
had ten days after the Court adjourned the first sentencing hearing to respond to the
government’s enhancement argument at the second sentencing hearing. Second, Greene
himself raised an untimely objection at sentencing that was ultimately sustained by the
Court.
Finally, we reject Greene’s argument that the District Court abused its discretion
by not holding an evidentiary hearing on the obstruction of justice enhancement. “[T]he
Confrontation Clause does not apply in the sentencing context and does not prevent the
introduction of hearsay testimony at a sentencing hearing.” United States v. Robinson,
482 F.3d 244, 246 (3d Cir. 2007) (citations omitted). Hearsay testimony must have,

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3 The Court found that the facts presented by the government with respect to the
obstruction of justice enhancement were reliable and essentially uncontested. Greene’s
former girlfriend, Lisa Mitchell, had testified to these facts before the grand jury and
apparently confirmed them during her own criminal proceeding before the same District
Court Judge. The Court noted that Mitchell, under oath both before the grand jury and
before the Court, stated unequivocally that Greene directed her to make false statements
to the FBI.
4 Because we will affirm Greene’s sentence, we need not reach the government’s
argument as to whether the ex post facto clause applies to the Guidelines now that they
are advisory only.
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however, “some minimal indicium of reliability beyond mere allegation.” Id. (internal
quotation marks and citation omitted); see also U.S.S.G. § 6A1.3(a). The Court
concluded that this standard was satisfied, and Greene has offered us no reason to find
otherwise.3
We will affirm the judgment of sentence.4

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