                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 09-3097
                                  _____________

                         UNITED STATES OF AMERICA,

                                         v.

             MARKEIF FIELDS, a/k/a MARKIEF DON’TE PARKER,
                                a/k/a KIEF,

                                                       Appellant.
                                  _____________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                                   (4:CR-06-144)
                     District Judge: Honorable Malcolm Muir
                                  _____________

                   Submitted Under Third Circuit L.A.R. 34.1(a),
                                 May 21, 2010

         Before: FUENTES, HARDIMAN, and NYGAARD, Circuit Judges.

                           Opinion Filed: August 12, 2010


                            OPINION OF THE COURT


FUENTES, Circuit Judge

     Markeif Fields appeals the District Court’s 113-month prison sentence after


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pleading guilty to one count of conspiracy with intent to distribute and distributing 50

grams or more of cocaine base in violation of 21 U.S.C. § 846. We have jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we will affirm.

                                             I.

       Because we write primarily for the parties, we discuss the facts only to the extent

necessary for resolution of the issue on appeal. Fields and Devin Hockaday were

involved in a conspiracy to distribute crack cocaine to co-conspirator Jimmy Dale

Doebler. They sold one to one and one-half ounces of crack to Doebler between three

and four times per week between 2005 and 2006. Occasionally, Fields and Hockaday

would receive firearms from Doebler as payment for the drugs. Eventually, Fields and

Hockaday arranged for Kalief Fields to purchase the crack cocaine from suppliers in

Philadelphia and deliver it to Doebler in Northumberland County. Doebler would then

resell the crack cocaine in the surrounding area. A government informant purchased

drugs from Doebler, which tipped off the authorities to the scheme. Police ultimately

arrested the four men and charged Fields with conspiracy to possess with intent to

distribute and distributing 50 grams or more of cocaine base in violation of 21 U.S.C. §

846. Fields entered a guilty plea on the charge.

       At sentencing, the District Court determined the Guideline sentencing range to be

113 to 137 months. Fields sought a downward variance pursuant to the crack/powder

cocaine differential. The Court denied his request and sentenced him to113 months’



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imprisonment.

                                             II.

       Fields raises one issue on appeal—whether the District Court imposed a

substantively unreasonable sentence when it declined to vary downward from the

Guidelines range based upon the crack/powder cocaine differential. We review the

reasonableness of Fields’ sentence for abuse of discretion. See United States v. Wise,

515 F.3d 207, 217 (3d Cir. 2008).

       Appellate review of a district court’s sentencing decision is ordinarily twofold.

We begin “by ‘ensur[ing] 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.’”

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)). “If the sentencing decision passes that first stage

of review, we then, at stage two, consider its substantive reasonableness.” United States

v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008). “An estimation of the outer bounds of

what is ‘reasonable’ under a given set of circumstances may not always be beyond debate,

but the abuse-of-discretion standard by which that estimation must be judged limits the

debate and gives district courts broad latitude in sentencing.” Id.



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       Fields’ challenge to the District Court’s decision not to vary downwards based

upon the crack/powder cocaine differential is directed at the sentence’s substantive

reasonableness,1 and we thus direct our attention solely to that question. Fields is correct

that the District Court had the discretion to so vary, see Kimbrough v. United States, 552

U.S. 85, 110 (2007), but it was not required to do so. In Kimbrough, the Supreme Court

held that “it would not be an abuse of discretion for a district court to conclude when

sentencing a particular defendant that the crack/powder disparity is ‘greater than

necessary’ to achieve § 3553(a)’s purposes . . . .” Id. at 110. The Supreme Court went

further in Spears v. United States when it stated that “district courts are entitled to reject

and vary categorically from the crack-cocaine Guidelines based on a policy disagreement

with those Guidelines.” --- U.S. ----, 129 S. Ct. 840, 843-844 (2009). Thus, district

courts have the discretion to apply the existing crack/powder ratio or to implement their

own ratio, so long as they articulate a reasonable explanation for their decision. “[T]he

district court must set forth enough to satisfy the appellate court that he has considered

the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” United States v. Merced, 603 F.3d 203, 215-216 (3d Cir.

2010) (internal quotation marks omitted).

       Here, the Court concluded that a variance would create a sentencing disparity



       1
        Fields does not suggest that the District Court committed procedural error by
erroneously concluding that it lacked discretion to vary from the crack cocaine
Guidelines.

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between Fields and his co-defendants, one of whom had already been sentenced within

the crack Guidelines range. We have held that “[a]lthough § 3553(a) does not require

district courts to consider sentencing disparity among co-defendants, it also does not

prohibit them from doing so.” United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006).

In the District Court’s view, giving Fields the benefit of this variance, while imposing the

crack/powder ratio on another conspirators would create an undue sentencing disparity

between the co-defendants. In an attempt to avoid unwarranted disparities between co-

defendants, the judge refused to grant this downward variance, which does not constitute

an abuse of discretion. Id.

       Additionally, the Court concluded that the serious nature of Fields’ offense

precluded a downward variance. The conspirators pled guilty to transporting and

distributing large amounts of crack cocaine in exchange for money and drugs. In the

District Court’s view, giving Fields the benefit of the crack/powder variance would

understate the seriousness of the offense and would work to undermine the deterrent and

punitive purposes of the punishment. These considerations provide further support for

the District Court’s decision not to vary downward based upon the crack/powder cocaine

differential. That is, the Court weighed the competing factors under § 3553(a) and

determined that the imposition of the Guidelines’ crack/powder ratio resulted in an

appropriate sentence. We see no abuse of discretion in this decision.

                                            III.



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For the foregoing reasons, we affirm the District Court’s judgment.




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