                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2006

USA v. Armstead
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3587




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Recommended Citation
"USA v. Armstead" (2006). 2006 Decisions. Paper 838.
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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                     No. 05-3587
                                     __________

                          UNITED STATES OF AMERICA,

                                           v.

                    ROBERT ARMSTEAD a/k/a Ronald Woodson

                                   Robert Armstead,
                                                      Appellant
                                     __________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                   No. 00-CR-0006
                      District Judge: Honorable J. Curtis Joyner
                                     __________

                               Submitted May 12, 2006
                        Pursuant to Third Circuit L.A.R. 34.1(a)

               Before: BARRY, SMITH and TASHIMA*, Circuit Judges

                            (Opinion filed: June 26, 2006 )
                                     __________

                                      OPINION
                                     __________



      *
              Honorable A. Wallace Tashima, Senior United States Circuit Judge for the
Ninth Circuit Court of Appeals, sitting by designation.
TASHIMA, Circuit Judge:

       This is defendant-appellant Robert Armstead’s second appeal from his sentence.

Armstead was convicted, on a plea of guilty, of conspiracy to distribute more than 50

grams of cocaine base, possession of cocaine base with the intent to distribute within

1,000 feet of a school, in violation of 21 U.S.C. §§ 846, 860, and 841(a)(1), and

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c). At the original sentencing hearing, the district court granted a

downward departure, pursuant to U.S.S.G. § 5K1.1, from a mandatory minimum life

sentence and imposed a sentence of 15 years’ imprisonment. On appeal, we affirmed the

judgment and commitment order because “we [did] not have jurisdiction to review the

extent of the downward departure.” United States v. Armstead, 117 Fed. Appx. 182, 183

(3d Cir. 2004) (“Armstead I”). On certiorari, the Supreme Court vacated our judgment

and remanded for further consideration in light of United States v. Booker, 543 U.S. 220

(2005). Armstead v. United States, 543 U.S. 1181 (2005). We, in turn, remanded to the

district court for resentencing.

       On remand, the district court resentenced Armstead to the same sentence, viz., 120

months’ imprisonment on the drug offenses, a consecutive 60-month term of

imprisonment on the firearm offense (for a total imprisonment of 180 months), to be

followed by 20 years’ supervised release. The district court also imposed a fine of $3,000


                                            -2-
and a special assessment of $300. This timely appeal followed. Ordinarily, we have

jurisdiction over sentencing appeals under 18 U.S.C. 3742.1 Concluding that we have

jurisdiction over this appeal, we reach the merits of Armstead’s contentions and affirm

the sentence.

       I.       Appellate Jurisdiction

       It had been settled law under the Guidelines sentencing regime that a defendant

could not appeal the extent of a discretionary grant of a downward departure. See United

States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990) (cited in Armstead I, 117 Fed. Appx. at

183); United States v. Graham, 72 F.3d 352, 360-61, 361 n.10 (3d Cir. 1995) (collecting

cases). The government relies on those cases and on the Sentencing Reform Act of 1984

in contending that we have no appellate jurisdiction to review the sentence in this case.

Specifically, it contends that there is no appellate jurisdiction under § 3742(a) because the

sentence was not “imposed as a result of an incorrect application of the sentencing

guidelines; or is greater than the sentence specified in the applicable guideline range. . . .”

18 U.S.C. § 3742(a)(2)-(3).

       The government’s contention, however, is foreclosed by our recent opinion in

United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), in which we concluded that there is



       1
                As we discuss below, the government challenges our jurisdiction over this
appeal.

                                              -3-
appellate jurisdiction over post-Booker sentencing appeals, in cases where the sentence is

within the Guidelines, under 18 U.S.C. § 3742(a)(1), which provides for appellate review

of sentences which were “imposed in violation of law.” See id. at 327. Our jurisdiction

in such cases is “to review [the] sentence for reasonableness under 18 U.S.C. §

3742(a)(1).”2 Id. We now turn to that task.

              II.    Is the Sentence Unreasonable

       At sentencing, absent a downward departure, Armstead faced a statutory

mandatory sentence of life imprisonment. Even without the statutory mininum sentence,

the applicable Guidelines sentencing range called for a term of imprisonment of 21 to 27

years. Thus, in sentencing him to 10 years’ imprisonment on the drug counts, plus the

mandatory 60-month consecutive term for the firearm offense, the district court granted

Armstead a substantial downward departure under U.S.S.G. § 5K1.1. In imposing

sentence, in addition to taking the required factors into consideration, the court also

considered, and rejected, Armstead’s contention that he was entitled to a further reduction

because of his behavior in prison since the first sentencing and his assertion that he was a

changed man. We are satisfied that the sentencing court considered the § 3553(a) factors,



       2
               Cooper, however, confirms our pre-Booker case law that we continue to
lack jurisdiction to review discretionary decisions to deny departures and challenges to
the extent of a downward departure. 437 F.3d at 332-33. Thus, our review of the
sentence on this appeal is limited to a “reasonableness” review.

                                             -4-
Cooper, 437 F.3d at 330, and conclude that Armstead has failed to carry his “burden of

demonstrating unreasonableness,” id. at 332.

      AFFIRMED.




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