                                                              NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            ________________

                                   No. 11-4176
                                ________________

                          UNITED STATES OF AMERICA

                                         v.

                                 TARIK DEPASS,
                                    a/k/a RIK

                                   Tarik DePass,

                                          Appellant
                                ________________

                   Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                  (D.C. Criminal Action No. 2-09-cr-00686-001)
                    District Judge: Honorable Joel H. Slomsky
                                ________________

                   Submitted Under Third Circuit LAR 34.1(a)
                               January 10, 2013

            Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges

                          (Opinion filed: January 17, 2013)

                                ________________

                            OPINION OF THE COURT
                               ________________

FUENTES, Circuit Judge:
       Defendant/Appellant Tarik Depass was convicted by a jury in the United States

District Court for the Eastern District of Pennsylvania of one count of robbery of a postal

employee in violation of 18 U.S.C. § 2114(a). The District Court sentenced Depass to a

term of forty-one months‟ imprisonment. On appeal, Depass argues that the evidence

presented at his trial was insufficient to sustain his conviction, and also that his sentence

was subjectively unreasonable. For the reasons that follow, we will affirm the conviction

and sentence.

                                              I.

       Because we write solely for the parties, we recite only those facts essential to our

decision. At trial, United States postal service worker Elsa Ortiz testified that, on

September 14, 2009, she attempted to deliver a large package addressed to Jalen Wilson

at 463 E. Cheltenham Ave. in Philadelphia. When she arrived at that address, Ortiz

encountered Depass, who claimed to be Jalen Wilson. When Ortiz requested

identification, Depass provided a driver‟s license bearing a different name and address.

As a result, Ortiz refused to give the package to Depass, and drove to a location a few

blocks away. Later that day as Ortiz was standing outside of her vehicle, Depass

approached, pushed her from behind, entered the back of the vehicle, and grabbed the

package. Depass then exited the vehicle and got into a waiting car, which drove away.

       On August 5, 2011 a jury convicted Depass of one count of robbery of a postal

employee in violation of 18 U.S.C. § 2114(a). The District Court deferred sentencing

pending the preparation of a Presentence Report (“PSR”), which was issued in October

2011. The Sentencing Guidelines assign a base offense level of 20 to the crime of

                                              2
robbery of a postal employee and provide a list of enumerated enhancements based upon

specific offense characteristics. See U.S.S.G. § 2B3.1. The PSR applied a two-level

enhancement pursuant to U.S.S.G. § 2B3.1(b)(1) because the property of the United

States post office was the object of the offense and a postal service employee was a

victim. The PSR indicated Depass‟s total offense level was 22. Based on his one

criminal history point,1 the PSR designated Depass as having a criminal history category

of I. Accordingly, his Guidelines range was 41-51 months‟ imprisonment. No factors

under 18 U.S.C. § 3553(a) were identified as warranting a sentence outside the advisory

Guidelines range. On November 15, 2011, the District Court sentenced Depass to a term

of 41 months‟ imprisonment and three years of supervised release. This timely appeal

followed.2

                                            II.

       On appeal, Depass argues that the evidence presented at his trial was insufficient

to sustain his conviction, and also that his sentence was subjectively unreasonable.

                                            A.

       Depass argues that there was insufficient evidence presented at trial to convict him

of robbery, as his physical interaction with Ortiz amounted to nothing more than




1
  The point was based on a single 2008 conviction for possessing a controlled substance.
2
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction over the final judgment of conviction and sentence pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
                                             3
“incidental touching.”3 Appellant‟s Br. at 13. Title 18 U.S.C. § 2114(a) makes it a crime

to:

       assault[] any person having lawful charge, control, or custody of any mail
       matter or of any money or other property of the United States, with intent to
       rob, steal, or purloin such mail matter, money, or other property of the
       United States, or rob[] or attempt[] to rob any such person of mail matter,
       or of any money, or other property of the United States . . . .

Robbery is not defined in § 2114(a), and thus courts have given the word its common law

meaning, that is, “the taking . . . of property from the person of another against his will by

violence or putting him in fear.” United States v. Rodriguez, 925 F.2d 1049, 1052 (7th

Cir. 1991) (quoting Costner v. United States, 139 F.2d 429, 431 (4th Cir. 1943)).

Whether a robbery occurred is generally a question of fact to be resolved by the jury, not

a question of law to be resolved in the first instance by the reviewing court. Id. at 1052

n.3. Given that Depass admits that he pushed Ortiz in an effort to retrieve the package,

there was sufficient evidence for a rational trier of fact to conclude that a robbery did

occur under § 2114(a).

                                             B.

       Our review of the reasonableness of the District Court‟s § 3553(a) analysis is two-

fold. First, we “determine whether the trial court considered the § 3553(a) factors and

any sentencing grounds properly raised by the parties which have recognized legal merit

and factual support in the record. Then, we ascertain whether those factors were


3
 Because Depass did not move for a judgment of acquittal in the district court based on
sufficiency of the evidence, his claim is reviewed for plain error. United States v.
Gordon, 290 F.3d 539, 547 (3d Cir. 2002).

                                              4
reasonably applied to the circumstances of the case.” United States v. Lopez, 650 F.3d

952, 963–64 (3d Cir. 2011) (internal quotation marks and citations omitted).

       Depass claims that the District Court‟s application of § 3553(a) was unreasonable

because it failed to consider relevant evidence of the nature and circumstances of the

offense, as well as his personal and criminal history, which was sufficient to warrant a

sentence outside the applicable Guidelines range. Our review of the record, however,

indicates that the District Court indeed considered this evidence. While giving due

consideration to the particular nature and circumstances of the offense, as well as the

history and characteristics of the defendant, the District Court also considered the

countervailing § 3553(a) consideration of the need for the sentence imposed.

Particularly, the Court expressed concern with the potential for injury caused by Depass‟s

actions, as well as the fact that it “was an unprovoked robbery of someone who . . . was a

representative of the United States who was just doing their job.” Supplemental

Appendix 157. Furthermore, the District Court considered Depass‟s dearth of prior work

history and apparent lack of motivation. This analysis is sufficient to show that the

District Court “adequately demonstrate[d] its exercise of „independent judgment‟ and

meaningful consideration of the relevant sentencing factors.” United States v. Merced,

603 F.3d 203, 215 (3d Cir. 2010) (quoting United States v. Sevilla, 541 F.2d 226, 232 (3d

Cir. 2008)).

       Based on its assessment of the above factors, the District Court concluded that a

sentence at the low end of the Guidelines range was reasonable. In so doing, the Court

explicitly stated that it found this sentence necessary to reflect the seriousness of the

                                              5
offense, and the need to protect postal service employees from danger. We are satisfied

that this explanation met the Court‟s “obligation to provide sufficient justifications on the

record to support the sentencing conclusion.” United States v. Levinson, 543 F.3d 190,

196 (3d Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 50 (2007)). Though the

sentence imposed on Depass is admittedly lengthy given his minimal criminal history, it

was at the bottom of the Guidelines range, and was not substantively unreasonable.

                                             III.

       In sum, we conclude that the evidence presented at trial was sufficient to sustain

Depass‟s conviction for robbery of a postal employee in violation of 18 U.S.C. § 2114(a).

In addition, we conclude that the District Court gave adequate consideration to the

§ 3553(a) factors and that the 41-month sentence it imposed on Depass was substantively

reasonable. Accordingly, we will affirm the conviction and sentence.




                                              6
