United States of America v. Rashon Alexander, a/k/a Boog Rashon Alexander

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2357
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UNITED STATES OF AMERICA
v.
RASHON ALEXANDER,
a/k/a Boog
Rashon Alexander,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 06-cr-00891)
District Judge: Honorable Katharine S. Hayden
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Submitted Under Third Circuit LAR 34.1(a)
July 1, 2010
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges.
(Filed: July 1, 2010)
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OPINION OF THE COURT
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Alexander claims the District Court erred by not using the 2006 version of the1
Guidelines, which was current at the time of his offense. Because we reach the same
conclusion regardless of which version of the Guidelines is used, we will assume,
arguendo, that Alexander is correct in this regard.
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HARDIMAN, Circuit Judge.
Pursuant to a written agreement, Rashon Alexander pleaded guilty to one count of
possessing a firearm after being convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1), and was sentenced to 84 months imprisonment. Alexander appeals his
judgment of sentence, contending that the District Court incorrectly computed his
criminal history category and imposed a procedurally and substantively unreasonable
sentence. We will affirm.
I.
Because we write for the parties, we recount only the essential facts and procedural
history.
Consistent with the United States Sentencing Guidelines (USSG), the District
Court calculated Alexander’s offense level as 21 and his criminal history category as VI,
which yielded an advisory Guidelines range of 77 to 96 months imprisonment. On1
appeal, Alexander claims his criminal history category calculation was incorrect because
the District Court did not group together his three prior sentences for possessing a
controlled dangerous substance within 1000 feet of school property, in violation of New

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Jersey law. The District Court assigned three criminal history points to each of these
offenses, which accounted for nine of Alexander’s 17 criminal history points.
According to USSG § 4A1.2(a)(2), in computing a defendant’s criminal history,
“[p]rior sentences imposed in related cases are to be treated as one sentence.” Application
Note 3 to § 4A1.2 elaborates further:
Prior sentences are not considered related if they were for offenses that
were separated by an intervening arrest (i.e., the defendant is arrested for
the first offense prior to committing the second offense). Otherwise, prior
sentences are considered related if they resulted from offenses that (A)
occurred on the same occasion, (B) were part of a single common scheme
or plan, or (C) were consolidated for trial or sentencing.
In support of his argument that his three possession sentences should have been grouped
as one, Alexander notes that he received a single sentence for all three offenses. Had the
District Court grouped Alexander’s offenses, it would have reduced his criminal history
score to 11, and his criminal history category to V, which would have resulted in an
advisory sentencing range of 70 to 87 months. We review de novo the District Court’s
interpretations of the Sentencing Guidelines, United States v. Pojilenko, 416 F.3d 243,
246 (3d Cir. 2005), but review the District Court’s findings of fact only for clear error,
United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008).
Alexander’s argument fails because, as the District Court found, his three
possession offenses were separated by intervening arrests. Alexander committed the first
possession offense on January 4, 2000, and was arrested that same day. He was released
on bond, but committed the same offense the next day, January 5, and was re-arrested.

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After being released a second time, he committed the third offense on March 21, 2000.
Thus Alexander plainly was “arrested for the first offense prior to committing the second
offense,” and for the second offense before committing the third. Under Application
Note 3, the District Court was not permitted to treat these consolidated sentences as
“related.” Accordingly, the District Court committed no error when it decided not to
group these three offenses.
II.
Alexander also claims his sentence was procedurally and substantively
unreasonable, arguing that the District Court erred by: (1) failing to consider his
mitigating circumstances and the factors enumerated in 18 U.S.C. § 3553(a); and (2)
refusing to reduce his sentence to reflect those circumstances and factors. As the
Government points out, however, Alexander is precluded from raising these arguments by
the appellate waiver in his plea agreement. We have previously stated:
We will decline to exercise our jurisdiction to review the merits of [a
defendant’s] appeal if we conclude (1) that the issues he pursues on appeal
fall within the scope of his appellate waiver and (2) that he knowingly and
voluntarily agreed to the appellate waiver, unless (3) enforcing the waiver
would work a miscarriage of justice.
United States v. Corso, 549 F.3d 921, 927 (3d Cir. 2008). Here, Alexander “agree[d] that
a sentence within the Guidelines range that results from the agreed total Guidelines
offense level of 21 is reasonable,” and “voluntarily waive[d] . . . the right to file any
appeal . . . which challenges the sentence imposed by the sentencing court if that sentence

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The plea agreement does not bar Alexander’s challenge to the District Court’s2
calculation of his criminal history category, because both parties expressly reserved the
right to appeal that determination. The plea agreement is clear, however, that once
Alexander’s criminal history category is determined, he may not appeal his sentence if it
falls within the range dictated by that category and an offense level of 21. The District
Court fully explained this to Alexander at his plea hearing.
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falls within or below the Guidelines range that results from the agreed total Guidelines
offense level of 21.” Because the District Court found that Alexander’s offense level2
was 21 and sentenced him within the resulting Guidelines range, Alexander’s attack on
the reasonableness of that sentence falls squarely within the appellate waiver. Alexander
attempts neither to impugn the voluntariness of his waiver nor to argue that its
enforcement would result in a miscarriage of justice. Accordingly, we will not exercise
jurisdiction over this aspect of Alexander’s appeal.
For the foregoing reasons, we will affirm Alexander’s judgment of sentence.

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