                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 10-3356
                                    _____________

                          UNITED STATES OF AMERICA,

                                           v.

                                KAMAU MUNTASIR,
                                   a/k/a Faheem,
                                               Appellant
                                 _______________

                    On Appeal from the United States District Court
                           for the District of New Jersey
                                 (D.C. No. 09-cr-245)
                        District Judge: Hon. Jose L. Linares
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 14, 2011

              Before: FISHER, JORDAN and COWEN, Circuit Judges.

                                (Filed: April 15, 2011)
                                  _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Kamau Muntasir, a career offender, pled guilty to possession with intent to

distribute heroin. He was sentenced at the bottom of the Guidelines range to 151 months‟

imprisonment. On appeal, Muntasir alleges that the District Court misunderstood the
chronology of his rehabilitation and abused its discretion by not giving greater credit to

his rehabilitative efforts and not departing from the Guidelines range. Muntasir‟s

arguments are unpersuasive, and we will uphold the sentence imposed by the District

Court.

I.       Background

         From 1991 to 2006, Muntasir committed and was incarcerated for several crimes,

including possession of controlled substances, robbery, attempted criminal possession of

a weapon and possession of a handgun, and receiving stolen property. Upon his release

from prison in March 2006, Muntasir pledged to his mother that he would live a law-

abiding life. Nevertheless, on October 17 and18, 2006, he was recorded by federal agents

buying 55 grams of cocaine, 10 bricks of heroin, and various drug packaging and

preparation items. In September 2008, Muntasir was arrested for those October 2006

crimes.

         Between his October 2006 crimes and his September 2008 arrest for them,

Muntasir endeavored to rehabilitate himself. He participated in outpatient drug

treatment. He was intermittently employed as a contract laborer and sought vocational

training. He also volunteered as a mentor in a youth training program and served on the

host committee for a celebrity‟s April 2008 visit to two local schools.1 That period was




     1
     Muntasir‟s rehabilitative efforts have continued while incarcerated. In August 2009,
he enrolled in a distance learning associates degree program.

                                             2
not free from missteps, however. Although he was only convicted once of a drug related

crime during that time,2 his long history of illegal drug use continued.

         On April 6, 2009, a federal grand jury indicted Muntasir on two counts: one for

distribution and possession with intent to distribute 5 grams or more of cocaine base, in

violation of 21 U.S.C. §§ 841(a) and (b)(1)(B), and 18 U.S.C. § 2; and another for

distribution and possession with intent to distribute heroin, in violation of §§ 841(a)(1)

and (b)(1)(C) and 18 U.S.C. § 2.3 Pursuant to an agreement with the government,

Muntasir pled guilty to the heroin count. The parties stipulated that Muntasir‟s offense

involved 16.7 grams of heroin and 35.3 grams of cocaine base.

         At sentencing, the District Court acknowledged receiving and considering the

presentence report; the original sentencing memorandum; and several other documents

submitted on Muntasir‟s behalf, including letters from Muntasir, his mother, and

personnel at some of the organizations with which he had worked after his October 2006

crimes. The District Court also heard from Muntasir‟s counsel and Muntasir himself

regarding Muntasir‟s rehabilitative efforts after those crimes.

         During the sentencing hearing, the District Court stated:

         The defendant has made the argument that he has made aggressive steps
         towards fixing his life of crime and being a contributing member of society
         by mentoring … et cetera. I get from the statements that were made by his
         own mother and by him in prior sentences, that this is something that he has
         began to do, but has returned to a life of crime.


   2
      In 2007, after being found in possession of heroin, Muntasir was convicted of
loitering to obtain controlled substances.
   3
       References are to the 2009 edition of the United States Code.

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(App. at 28.) At the prodding of Muntasir, his counsel interjected “[t]he rehabilitation

things occurred after… .” (App. at 29.) Muntasir himself tried to reinforce that

clarification, which prompted the Court to respond:

        But what I said before was that based on the statements that were made in
        interviews regarding his offense to family members, it seems to be that he
        had begun to make rehabilitative efforts and therefore people were
        surprised when he was arrested again.

(Id.)

        Muntasir‟s counsel confirmed that the Court‟s statement was accurate, and then

Muntasir added: “But the offense occurred before I started doing that, and then they

arrested me … so I had stopped doing what I was doing for the charge.” (App. at 29-30.)

The Court concluded the exchange by stating that it “kind of recounts the whole criminal

history involved here” and then noting that the rehabilitative efforts Muntasir had brought

to the Court‟s attention should be considered under 3553 but did not “warrant a departure

from the otherwise applicable guidelines.” (App. at 30.)

        Immediately prior to imposing a sentence, the Court again referenced Muntasir‟s

rehabilitative efforts as well as his hope for continued rehabilitation, and stated that if

Muntasir “utilize[d] [his] time [in jail] to rehabilitate himself … he [would be] a

contributing member of society” and “have a future.” (App. at 32.) Then, in light of

Muntasir‟s record, his attempts at rehabilitation, the seriousness of the drugs involved and

the offense, and the allocution, the Court concluded that, though “some consideration

should be given to [Muntasir] for his rehabilitative efforts, … a sentence within the

guidelines [range] is still appropriate.” (Id.)


                                                  4
          Muntasir‟s criminal history qualified him as a career offender under

U.S.S.G.§ 4B1.1. His total offense level was 29 and his criminal history category was

VI, which made 151 to 188 months‟ imprisonment the recommended Guidelines range.

U.S.S.G. § 5(A). The District Court sentenced Muntasir to 151 months‟ imprisonment.

He then filed this timely appeal.

II.       Standard of Review4

          We review the District Court‟s sentencing decisions for abuse of discretion,

looking first for procedural error and then examining the sentence for substantive

reasonableness. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008). With

respect to sentencing-related factual findings, our review for abuse of discretion is

effectively a review for clear error. See id. at 217 (“[I]f the asserted procedural error is

purely factual, our review is highly deferential and we will conclude there has been an

abuse of discretion only if the district court‟s findings are clearly erroneous.”). A

sentence will be upheld as substantively reasonable unless no other reasonable sentencing

court would have imposed the same sentence for the reasons provided. United States v.

Doe, 617 F.3d 766, 770 (3d Cir. 2010).

III.      Discussion

          On appeal, Muntasir argues that the previously recounted exchange between the

Court, himself, and his counsel illustrates that the judge incorrectly understood his

rehabilitative efforts to have occurred after he was arrested in 2008 for the crimes he

      4
     The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                               5
committed in 2006, instead of when those efforts actually occurred, which was during the

period between the crimes and his arrest. That argument is strained and unavailing. The

District Court considered the entire record, was aware of Muntasir‟s rehabilitative efforts,

and – particularly after the above-quoted colloquy during the sentencing hearing –

understood the chronology of those efforts as they related to the criminal activity. The

record does not evince any confusion undermining the validity of the sentence, a

sentence, it should be emphasized, that was at the bottom of the Guidelines range despite

the government‟s recommendation that it be at the top.5 In short, it cannot fairly be said

that the District Court was operating on a mistake of fact when it pronounced sentence.

       Nor can it be said that the Court abused its discretion in sentencing Muntasir to

151 months in prison, the bottom of the Guidelines range. First, the Court carefully read

the PSR, which details the chronology of Muntasir‟s rehabilitative efforts, including his

employment, volunteer work, educational pursuits, and participation in drug treatment

programs.6 The Court stated that it took the time to read the documents and to look at the

photographs provided by Muntasir to demonstrate his rehabilitative efforts, including


   5
     It should be noted that the statements by the Court that Muntasir challenges are
accurate. Muntasir had “begun to make rehabilitative efforts” and people, like his
mother, “were surprised when he was arrested again.” (App. at 29.) Even if the Court‟s
statements could be read as indicating the Court thought Muntasir had continued criminal
activity after his 2006 release and after he had begun in earnest to change his ways, that
too would have been accurate because the record demonstrates that Muntasir continued
using heroin periodically from September 2007 until September 2008.
   6
      That the Court carefully read the PSR is evidenced both by the Court‟s statement
that it did so and by the Court‟s comments noting differences between Muntasir‟s
sentencing memorandum and the PSR, pointing out a mistake in the PSR, and referencing
Muntasir‟s mother‟s comments in the PSR.

                                             6
those provided on the day of sentencing. In addition, the Court “listened to what

[Muntasir] stated to [the] Court, and … to what his counsel had to say.” (App. at 24.)

Muntasir‟s allocution included numerous references to his rehabilitative efforts and

involvement in the community as well as the representation that he had begun rebuilding

his life “before my arrest, before I even knew my arrest was pending.” (App. at 19.) The

sentence is both within the recommended Guidelines range and reflects a careful and

reasoned consideration of Muntasir‟s rehabilitative efforts and the seriousness of the

charges in his case. Cf. United States v. Hoffecker, 530 F.3d 137, 204 (3d Cir. 2008)

(noting that, though “we do not deem a within-Guidelines sentence presumptively

reasonable, it is „more likely to be reasonable than one that lies outside the advisory

guidelines range‟” (quoting United State v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006)).

IV.    Conclusion

       For the foregoing reasons we will affirm the order of the District Court setting

forth Muntasir‟s sentence.




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