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


6-9-2009

USA v. Lawrence Merrill
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3415




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 08-3415


                           UNITED STATES OF AMERICA

                                           v.

                               LAWRENCE MERRILL,
                                         Appellant


                      Appeal from the United States District Court
                             for the District of New Jersey
                        (D.C. Criminal No. 07-cr-00950-001)
                       District Judge: Honorable Joel A. Pisano


                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 21, 2009

          Before: RENDELL, STAPLETON and ALARCÓN*, Circuit Judges

                                 (Filed: June 09, 2009 )


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      On February 7, 2008, Merrill pled guilty to a charge of conspiracy to distribute




       *Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for
the Ninth Circuit, sitting by designation.
heroin from August, 2003, through January, 2004. In the plea agreement the parties

stipulated that Merrill sold 20.9 grams of heroin to undercover agents in several

controlled buys. The Pre-Sentence Investigation Report (“PSR”), calculated his base

offense level at 18, and recommended that he be sentenced as a career offender based on

his 1997 state conviction for possession of heroin with intent to distribute within 1000

feet of a school, and his 2005 state conviction for possession of cocaine with intent to

distribute within 1000 feet of a school. The PSR calculated Merrill’s criminal history

category as VI, with 13 criminal history points arising from five prior convictions,

including the 1997 and 2005 convictions mentioned above. The resulting Guidelines

range was 151-188 months’ imprisonment.

       Merrill raised several objections to the PSR, two of which the District Court

sustained: first, the court determined that Merrill should not be sentenced as a career

offender because the offense of conviction was committed before the 2005 state cocaine

conviction, and second, the court declined to add the three points for the 2005 state

cocaine conviction to Merrill’s criminal history, because the underlying conduct was

“related” to the federal heroin offense and therefore was not a “prior sentence.” (App.

39-40.) The District Court’s Guidelines calculation was much lower than that in the PSR:

37-46 months, rather than 151-188 months. The court sentenced Merrill to an above-

Guidelines 60 months’ imprisonment, saying that it was “not satisfied that the nature of

this drug conspiracy is adequately recognized by the Court.” (App. 49.)



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        The District Court did not give Merrill credit for time served on the 2005 state

conviction, reasoning that they were separate prosecutions in separate jurisdictions. At

sentencing, Merrill’s counsel asked that the court reconsider its decision regarding credit

for time served on the state conviction, arguing that it was relevant conduct to the

conspiracy to which he pled guilty. The District Court said that Merrill “was not in

custody in connection with the federal charges and he’s therefore, under federal law, not

entitled to credit for that time spent.” (App. 44-45.)

        Merrill makes two arguments on appeal: first, he argues that the District Court

erred in refusing to grant him credit for time served for the 2005 state conviction under

§ 5K2.23 of the Guidelines. Second, he contends that his sentence was unreasonable.

We review a district court’s interpretation of the Sentencing Guidelines de novo. United

States v. McKoy, 452 F.3d 234, 236 (3d Cir. 2006). We review the sentence itself under

an abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); United

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

        We will first address Merrill’s argument that he should have received credit for

time served for his 2005 state conviction. Section 5K2.23 of the Guidelines provides

that:

        A downward departure may be appropriate if the defendant 1) has completed
        serving a term of imprisonment; and 2) subsection (b) of § 5G1.3 (Imposition of a
        Sentence on a Defendant Subject to Undischarged Term if Imprisonment) would
        have provided an adjustment had that completed term of imprisonment been
        undischarged at the time of sentencing for the instant offense. Any such departure
        should be fashioned to achieve a reasonable punishment for the instant offense.

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U.S.S.G. § 5K2.23. Section 5G1.3(b) provides, in relevant part:

       If . . . a term of imprisonment resulted from another offense that is relevant
       conduct to the instant offense of conviction . . . and that was the basis for an
       increase in the offense level for the instant offense under Chapter Two (Offense
       Conduct) or Chapter Three (Adjustments), the sentence for the instant offense
       shall be imposed as follows:

              1) the court shall adjust the sentence for any period of imprisonment already
              served on the undischarged term of imprisonment if the court determines
              that such period of imprisonment will not be credited to the federal sentence
              by the Bureau of Prisons; and

              2) the sentence for the instant offense shall be imposed to run concurrently
              to the remainder of the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(b) (emphasis added).

       Merrill must show both that the term of imprisonment resulted from another

offense that is relevant conduct to the instant offense of conviction, and that the relevant

conduct was the basis for an increase in the offense level.1 See United States v. Parker,

512 F.3d 1037, 1040 (8th Cir. 2008). The District Court acknowledged, and the

government does not dispute, that the state conviction was related conduct to the federal

charge. Merrill, the government contends, cannot show that the 2005 state cocaine




  1
     The government acknowledges that the District Court’s analysis was flawed when it
differentiated between state and federal jurisdictions in declining to grant Merrill credit
for time served on the state conviction. Section 5G1.3(b) is intended to credit defendants
who have already served time – often in another jurisdiction – for the same conduct or
course of conduct. See, e.g., United States v. Flowers, 13 F.3d 395, 397 (11th Cir. 1994).
It is well settled that we may affirm a district court’s judgment on grounds other than
those considered by the district court itself. See, e.g., United States v. Perez, 280 F.3d
318, 337 (3d Cir. 2002); United States v. Miller, 224 F.3d 247, 248 (3d Cir. 2000).

                                              4
conviction was the basis for an increase in the offense level.

       We agree. Merrill’s 2005 cocaine conviction did not play a role in the District

Court’s calculation of an offense level of 15, which was based on the amount of heroin

involved in the federal offense (a base offense level of 18) and a three-level reduction for

acceptance of responsibility. Merrill cannot establish that the state conviction increased

his offense level, and therefore he is not entitled to credit for time served under

§§ 5G1.3(b) and 5K2.23 of the Guidelines.

       Merrill also argues that the District Court abused its discretion when it sentenced

him to 60 months’ imprisonment, 14 months over the Guidelines range of 37-46 months.

He claims that the District Court did not meaningfully consider factor (4) of section

3553(a), because the court took into account Merrill’s early start at a life of crime, his

multiple drug and gun convictions, and the fact that he was on probation when he

committed the crime of conviction. Merrill claims that the Guidelines calculation already

accounted for his offense conduct and criminal history, and that the District Court abused

its discretion when it included them in its analysis.

       The District Court’s sentence was procedurally and substantively reasonable. A

district court may consider facts that underlie the Guidelines calculation to determine a

reasonable sentence under § 3553(a). See, e.g., United States v. Levinson, 543 F.3d 190,

199-200 (3d Cir. 2008). The § 3553(a) factors include the nature and circumstances of

the offense and the history and characteristics of the defendant; the need for the sentence



                                              5
to reflect the seriousness of the offense, adequately deter criminal conduct, protect the

public, and provide correctional treatment; the kinds of sentences available, and the kinds

of sentences given to similarly situated defendants. 18 U.S.C. § 3553(a).

       It is clear from the record that the District Court gave meaningful consideration to

these factors. The court itself recalculated the initial Guidelines range proposed in the

PSR, concluding that Merrill should not be sentenced as a career offender and that his

2005 state conviction should not count toward his criminal history. At sentencing, the

court said that it was not satisfied that a sentence within the range was enough to

recognize the nature of Merrill’s drug conspiracy. The court specifically termed this a

discussion of the nature of the crime. Merrill’s involvement in the conspiracy was

significant, the District Court said, but he was held responsible for only the 20.9 grams of

heroin that he sold in controlled buys. The Guidelines range, therefore, did not reflect the

much larger amounts of heroin sold by Merrill and his co-conspirators over the life of the

conspiracy. The District Court also noted Merrill’s many convictions for gun and drug

crimes, and observed that he had not been deterred by his earlier convictions, that the

public needed to be protected, and that general deterrence would be served by an above-

Guidelines sentence.

       In determining the reasonableness of an above-Guidelines sentence, we must

consider the extent of the variance. Gall v. United States, 128 S. Ct. 586, 594-95 (2007).

Here, the sentence of 60 months was 14 months greater than the top of the Guidelines



                                              6
range. Merrill describes this as a “substantially severe sentence.” (Appellant’s Br. 17.)

The government agrees that the upward variance is substantial, but notes that we have

affirmed larger or comparable variances many times. See, e.g., United States v. Colon,

474 F.3d 95, 96 (3d Cir. 2007) (affirming a 93-month variance where the top of the range

was 87 months); United States v. King, 454 F.3d 187, 192 (3d Cir. 2006) (affirming a 35-

month variance where the top of the range was 37 months).

       Merrill’s sentence falls “within the broad range of possible sentences that can be

considered reasonable in light of the § 3553(a) factors.” United States v. Wise, 515 F.3d

207, 218 (3d Cir. 2008). The District Court properly considered the section 3553(a)

factors and did not abuse its discretion in sentencing Merrill to an above-Guidelines 60

months’ imprisonment.

       For the reasons set forth above, we will AFFIRM the Order of the District Court.




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