                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4161




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-4161


                           UNITED STATES OF AMERICA

                                            v.

                              CHRISTOPHER MARRERO,
                                              Appellant


                     On Appeal from the United States District Court
                             for the District of Delaware
                           D.C. Criminal No. 07-cr-0013-1
                            (Honorable Sue L. Robinson)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 26, 2009

         Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.

                               (Filed: February 27, 2009)


                               OPINION OF THE COURT


SCIRICA, Chief Judge.

      Christopher Marrero pled guilty to two counts of wire fraud in violation of 18

U.S.C. § 1343, and one count of aggravated identity theft in violation of 18 U.S.C. §

1028A. He was sentenced to 41 months imprisonment for wire fraud, to be followed by a
24 month sentence for aggravated identity theft, served consecutively as required under

18 U.S.C. § 1028A. Marrero appeals his sentence, contending the district court

procedurally erred by treating the sentencing guidelines as mandatory.1 Sentencing law

has evolved rapidly in the last few years. “Apprendi, Booker, Rita, Gall, and Kimbrough

have given the lower courts a good deal to digest over a relatively short period.” Spears

v. United States, No. 08-5721, slip op. at 7 (U.S. Jan. 21, 2009), available at 2009 U.S.

LEXIS 864, at *11. In light of our uncertainty over whether the District Court’s decision

conforms to current sentencing law, specifically Gall v. United States, 128 S. Ct. 586

(Dec. 10, 2007), we will remand for resentencing.

                                            I.

         We review the sentence under an abuse-of-discretion standard. We must

         ensure that the district court committed no significant procedural error, such
         as failing to calculate (or improperly calculating) the Guidelines range,
         treating the Guidelines as mandatory, failing to consider the § 3553(a)
         factors, selecting a sentence based on clearly erroneous facts, or failing to
         adequately explain the chosen sentence – including an explanation for any
         deviation from the Guidelines range.

Gall v. United States, 128 S.Ct. 586, 597 (2007).

                                                 II.

         In Nelson v. United States, the Supreme Court held “the sentencing court must first

calculate the Guidelines range, and then consider what sentence is appropriate for the



   1
       We have jurisdiction under 28 U.S.C. §1291 and 18 U.S.C. § 3742(a)(1).

                                                  2
individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a),2

explaining any variance from the former with reference to the latter.” No. 08-5657, slip

op. at 2 (U.S. Jan. 26, 2009), available at 2009 U.S. LEXIS 872, at *2 (footnote added);

see also United States v. Gunter, 462 F.3d 237, 243 (3d Cir. 2006) (outlining a

substantially identical process for district courts to follow).

          Here, the District Court stated:

                 I agree that the sentence suggested by the guideline range is
          extraordinarily long, and if I were writing on a blank slate, I’m not
          confident that I would come up with the same guideline ranges. But, of
          course I’m not. Not only am I looking at the guideline range, but I’m
          looking at the post-Booker new legal landscape imposed by the Third
          Circuit. And in addition to that, I’m looking at this defendant’s sentence
          vis-a-vis his [co-]defendants. So I’m not even able simply to take him, I
          don’t believe, and separate his acts from everyone else’s.
                 Given all of that, I take no pleasure, but I am going to follow the
          guideline range here. The range is so high based on the loss, and that’s


   2
       Under the statute, the relevant factors are:
         (1) the nature and circumstances of the offense and the history and
         characteristics of the defendant; (2) the need for the sentence imposed – (A)
         to reflect the seriousness of the offense, to promote respect for the law, and
         to provide just punishment for the offense; (B) to afford adequate
         deterrence to criminal conduct; (C) to protect the public from further crimes
         of the defendant; and (D) to provide the defendant with needed educational
         or vocational training, medical care, or other correctional treatment in the
         most effective manner; (3) the kinds of sentences available; (4) the kinds of
         sentence and the sentencing range established for . . . the applicable
         category of offense committed by the applicable category of defendant as
         set forth in the guidelines. . . (5) any pertinent policy statement– (A) issued
         by the Sentencing Commission . . . (6) the need to avoid unwarranted
         sentence disparities among defendants with similar records who have been
         found guilty of similar conduct; and (7) the need to provide restitution to
         any victims of the offense.

                                                3
       based on this defendant’s willingness to take money from his employer
       illegally. And unfortunately, Congress has made the determination that this
       sort of crime deserves harsh penalties. But at this point in time, based on
       the landscape that I am dealing with, I am not going to vary or depart from
       the guideline range.

JA-59-60.

       It is possible the District Court correctly followed the process laid out in Nelson. It

did calculate the guidelines and “then consider[ed] what sentence is appropriate for the

individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a),

explaining any variance from the former with reference to the latter.” Nelson, No. 08-

5657, slip op. at 2.

       But as a sister circuit has held, “Gall and Kimbrough represent the expansion of

the district court’s authority to vary from the guidelines . . . [having] wide latitude in

making individualized sentencing determinations.” United States v. Rodriguez, 527 F.3d

221, 225 (1st Cir. 2008); see Gall v. United States, 128 S. Ct. 586 (Dec. 10, 2007);

Kimbrough v. United States, 128 S.Ct. 558 (Dec. 10, 2007). And Kimbrough recognized

that “a categorical disagreement with and variance from the Guidelines is not suspect.”

Spears, No. 08-5721, slip op. at 4 (clarifying the Kimbrough holding with regards to the

crack cocaine ratio).

       When confronted with a district court’s uncertainty in sentencing, the First Circuit

prescribed resentencing in light of subsequent Supreme Court decisions. Rodriguez

vacated the sentence because the “district court, acting without the benefit of the



                                               4
watershed decision in Kimbrough . . . [, did not] consider requests for variant sentences

premised on disagreements with the manner in which the sentencing guidelines operate.”

Id. at 231.

        The District Court here also acted without the benefit of Gall and Kimbrough.

Due to the probability that the District Court believed itself unduly constrained by the

guidelines, we will vacate and remand so that the District Court may re-sentence Marrero.

Of course, we express no opinion as to what the sentence should be. Accordingly, we

will vacate the sentence and remand for resentencing in light of Gall v. United States, 128

S. Ct. 586 (2007).




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