                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3763




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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 07-3763
                                 ____________

                       UNITED STATES OF AMERICA


                                       v.

                            JERMANE E. BONNER,
                                            Appellant

                                       _
                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                            (D.C. No. 02-cr-00046-1)
                  District Judge: Honorable Gary L. Lancaster
                                  ____________

                   Submitted Under Third Circuit LAR 34.1(a)
                              November 18, 2008

    Before: SCIRICA, Chief Judge, FUENTES and HARDIMAN , Circuit Judges.

                           (Filed: November 26, 2008)

                                 ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       Jermane Bonner appeals his 180-month sentence following a guilty plea. We will

affirm in part and remand in part.

                                            I.

       Because we write exclusively for the parties, we recount only those facts necessary

to our decision.

       Bonner pleaded guilty to one count of possession with intent to distribute 50 grams

or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). The

presentence investigation report (PSR) classified Bonner as a career offender based upon

prior convictions for third degree murder, two counts of aggravated assault, and two

counts of reckless endangerment. See United States Sentencing Guidelines Manual

(USSG) § 4B1.1. This resulted in a total offense level of 34, a criminal history category

of VI, and an advisory Guidelines range of 262 to 327 months.

       Bonner objected to the PSR and moved for a downward departure based on an

overstatement of his criminal history under United States v. Shoupe, 988 F.2d 440 (3d

Cir. 1993). He also sought a variance under 18 U.S.C. § 3553(a) based on the

Guidelines’ 100:1 powder-to-crack ratio. Finding that he was more akin to a low-level

dealer than a drug kingpin, the District Court granted Bonner a substantial downward

variance and imposed a sentence of 180 months imprisonment.




                                            II.



                                            2
       We exercise appellate jurisdiction over Bonner’s claims of sentencing error under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324,

327-28 (3d Cir. 2006). We review Bonner’s sentence for reasonableness. See United

States v. Sevilla, No. 07-1105, 2008 WL 4069453, at *2-3 (3d Cir. Sept. 4, 2008).

                                             A.

       Bonner first argues that the District Court erred by failing to follow the three-step

procedure outlined in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). Although

Bonner was sentenced nearly a year before we decided Gunter, the District Court

followed appropriate procedures in imposing Bonner’s sentence.

       First, it is undisputed that the District Court accurately calculated Bonner’s

advisory Guidelines range (Gunter step one). 462 F.3d at 247. Second, the District Court

ruled on Bonner’s motion for downward departure pursuant to USSG § 4A1.3 when it

rejected his argument that his criminal history was overstated (Gunter step two).1 Id. The

District Court noted that Bonner violated the law repeatedly and committed the offense in

question while on state parole. The District Court also reasoned that any reduction in

Bonner’s criminal activity as an adult could be attributed to the fact that he had been

incarcerated for nine of fifteen years since reaching the age of majority. Finally, the

District Court considered Bonner’s request for a variance in methodical detail (Gunter




       1
        Although not challenged on appeal, it is clear that the District Court properly
denied Bonner’s motion for a downward departure because he is a career offender.

                                              3
step 3). In addressing almost all of the § 3553(a) factors, the District Court reviewed: the

nature and circumstances of the offense; the history and characteristics of the defendant;

the need for the sentence imposed to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the offense; the need for the

sentence imposed to afford adequate deterrence to criminal conduct; the need for the

sentence imposed to protect the public from further crimes of the defendant; the need for

the sentence imposed to provide the defendant with needed educational and vocational

training; the kinds of sentences available; and the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar

conduct. See 18 U.S.C. § 3553(a).

       With regard to the last factor, the Court acknowledged that if Bonner were

sentenced within his Guidelines range, it would create a disparity in sentencing. The

Court explained that the “harsh sentences” called for by the Guidelines were intended by

the Sentencing Commission to apply to major drug dealers, not low level dealers like

Bonner. Accordingly, the District Court granted Bonner’s request for a variance and

imposed a sentence of 180 months, 82 months below the bottom of his Guidelines range.

                                             B.

       Despite the District Court’s substantial downward variance, Bonner claims that the

Court erred by failing to consider the 100:1 crack-to-powder ratio that was recently

addressed by the Supreme Court in Kimbrough v. United States, 128 S. Ct. 558, 563



                                             4
(2007). Although the District Court’s substantial downward departure may have been

influenced by concerns over the crack/powder disparity at the time Bonner’s sentence was

imposed, we will vacate the judgment and remand the case in order to give the District

Court the opportunity to resentence Bonner in light of Kimbrough.

       In doing so, it is important to note that Bonner’s Guidelines range was correctly

calculated based on his career offender status, not by his possession with intent to

distribute crack cocaine. The range of 262 to 327 months was calculated under the career

offender section of the Guidelines, USSG § 4B1.1, not under USSG § 2D1.1(c), which

concerns drug quantities. However, the Government acknowledges that if Bonner had

been guilty of an offense involving powder cocaine instead of crack cocaine, he would

have been in a different Guidelines range, even if he were still considered a career

offender. The Government argues that since Bonner’s final sentence was below the

bottom end of where his Guidelines range would have been had he been found to be a

career offender in possession of powder cocaine, no Kimbrough remand is necessary. We

disagree.

       The Government argues that the trial judge granted this substantial variance under

§ 3353(a) because of the reasons articulated in Kimbrough, specifically the crack/powder

disparity. We are not so sure. The Court noted that the “harsh sentences” called for by

the Guidelines were intended by the Sentencing Commission to apply to major drug

dealers, not low-level dealers, and acknowledged that a disparity would result if Bonner



                                             5
were sentenced within the Guidelines. This may have been a signal that the District Court

took the crack/powder disparity into account, but the record is unclear on this point.

       We recognize that the District Court granted a substantial downward variance. It

is possible that inherent in this substantial downward variance was a concern over the

crack/powder disparity. However, because that reasoning was not explicit, we will

remand in order to give the District Court the opportunity to take account of Kimbrough

and Amendment 706 to the Sentencing Guidelines. The District Court may exercise its

discretion to impose the same sentence, or a lesser sentence, subject to our review for

procedural and substantive reasonableness.

                                             III.

       We note that although Bonner was sentenced before our ruling in Gunter, the

District Court very capably anticipated the substance of that precedent and sentenced

Bonner in conformance therewith. For the reasons stated herein, however, we will vacate

the judgment of the District Court and remand for a new sentencing hearing consistent

with this opinion.




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