                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-2004

USA v. Kellum
Precedential or Non-Precedential: Precedential

Docket No. 02-4054




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"USA v. Kellum" (2004). 2004 Decisions. Paper 1043.
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                       PRECEDENTIAL

                              Filed January 23, 2004

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                 No. 02-4054


        UNITED STATES OF AMERICA
                      v.
              CLAYTON KELLUM,
                           Appellant

 Appeal from the United States District Court
    for the Eastern District of Pennsylvania
            (Crim. No. 01-cr-00399)
  District Judge: Hon. Clarence C. Newcomer

Submitted pursuant to Third Circuit LAR 34.1(a)
              November 3, 2003
  Before: McKEE and SMITH, Circuit Judges,
        and WEIS, Senior Circuit Judge

           (Filed January 23, 2004)
                Elizabeth T. Hey, Esq.
                Defender Association of Philadelphia
                Federal Court Division
                Curtis Center, Independence Square
                 West
                Suite 540 West
                Philadelphia, PA 19106
                 Attorney for Appellant
                              2


                       Sara L. Grieb, Esq.
                       Office of United States Attorney
                       615 Chestnut Street
                       Suite 1250
                       Philadelphia, PA 19106
                         Attorney for Appellee


                 OPINION OF THE COURT

McKEE, Circuit Judge.
   Clayton    Kellum appeals from the district court’s
imposition   of the statutory mandatory minimum sentence
under 21      U.S.C. § 841, 18 U.S.C. § 924(c) and the
sentencing   guidelines. For the reasons that follow we will
affirm.

                              I.
   On January 7, 2001, a Coatesville, Pennsylvania police
officer saw Kellum standing at the corner of North 8th
Avenue and East Chestnut Street in Coatesville. Because
the officer knew of an outstanding warrant for Kellum’s
arrest, the officer approached Kellum. When Kellum saw
the officer approaching, he fled. The officer ran after Kellum
and, during the foot pursuit, the officer saw Kellum move
his hand near a pocket in the black nylon jacket Kellum
was wearing. The officer then saw Kellum remove the jacket
and turn the corner of 910 Merchant Street. When the
officer turned the corner in pursuit he immediately saw a
Tec-9 semiautomatic 9mm machine pistol laying on the
ground. Kellum’s jacket was approximately 10 feet from the
gun, and Kellum was approximately 15 to 20 feet away,
lying near a fence and wearing no jacket.
   A clear plastic container with a white lid was retrieved
from the right front pocket of the jacket. The container
contained numerous pieces of an off-white, rock-like
substance. A large, black plastic bag was recovered from
the left sleeve of the jacket. The bag contained 35 smaller
clear plastic baggies, with each baggie containing an off-
                                 3


white, rock-like substance. The substance in the container
and the bag tested positive for cocaine base, with a net
weight of 202 grams.
  After waiving his Miranda rights, Kellum admitted that
the gun found on the ground was his. He said that he had
purchased the gun the previous day.

                                II.
  A grand jury thereafter returned an indictment charging
Kellum with possession with intent to distribute in excess
of 50 grams of cocaine base (“crack”), in violation of 21
U.S.C. § 841(a)(1) (Count One), and carrying a firearm
during, and in relation to, a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1) (Count Two).
   Kellum pled guilty to possession of cocaine base with
intent to distribute and carrying a firearm in relation to a
drug trafficking offense pursuant to a written plea
agreement. Under the terms of that agreement, the
government agreed to recommend that the district court
sentence Kellum to the mandatory minimum sentence or at
the low end of the sentencing guidelines, whichever was
higher. Kellum and the government further agreed that if
the statutorily required minimum sentence for the drug
offense of ten years was greater than the maximum
applicable guideline range for the drug offense, then the
appropriate sentence for the drug offense would be ten
years. Kellum and the government agreed that the
guidelines sentence for the firearm count was five years
consecutive to the sentence that would be imposed on the
drug offense.
  At sentencing, pursuant to the plea agreement, the
government and Kellum recommended that the district
court sentence Kellum to the mandatory minimum sentence.1
However, the district court expressed some concern about
sentencing Kellum to a total of fifteen years imprisonment,
and questioned the government about its refusal to file a

1. At the time of his sentencing, Kellum was 23 years old. He had no
juvenile record and one adult state conviction for retail theft.
Presentence Report ¶¶ 27, 29.
                             4


motion for a downward departure under U.S.S.G. § 5K1.1.
The government responded by informing the court of the
opportunities it had provided Kellum to cooperate. The
government had taken several proffers from Kellum while
he was represented by prior counsel. Each time Kellum
apparently provided a little more information than the prior
time, but the government remained convinced that Kellum
was withholding information. Accordingly, the government
refused to agree to file a motion for a downward departure
under U.S.S.G. § 5K1.1. When Kellum obtained new
counsel, the government provided Kellum with another
opportunity to proffer his cooperation. However, after
conducting that proffer, the government remained skeptical
of Kellum’s cooperation and again refused to commit to a
5K1.1 motion.
  On October 21, 2002, the district court sentenced Kellum
to the statutory minimum sentences — imposing a
sentence of 120 months imprisonment on the drug
trafficking   charge   and    60     months     consecutive
imprisonment on the firearm charge. The sentence also
included a term of supervised release of five years and a
special assessment of $200. This appeal followed.

                            III.
   Kellum correctly notes that the district court was
“obviously convinced that the 15 year sentence [it] felt
compelled to impose was” excessive. Kellum’s Br. at 12.
After hearing from the Assistant United States Attorney, the
district court said: “It strikes me . . . that 15 years is an
awfully long time for anyone to have to spend in prison for
two offenses of that nature.” The court then explained why
it was imposing a 15 year sentence even though the court
felt such a sentence to be unjust and excessive. The court
said:
    I have no leeway. You may look to the court for justice,
    for mercy. We don’t do that anymore. We are here just
    to read what the act says, and to impose it. And it is
    with great reluctance that I’m going to enter sentence
    against you because, while I think your offenses were
    very serious offenses, it does not serve society’s
                                    5


     interest, in my view, to incarcerate you for 15 years for
     those two . . . offenses under the facts as I understand
     them.
App. at 80a.
   However, Kellum claims that the district court did have
leeway. He contends that the district court erred by
imposing the minimum mandatory sentence because it was
unaware that it had the authority under 18 U.S.C.
§ 3553(a) to impose a sentence below the statutory
minimum if it believed that the statutory minimum was
greater than necessary to achieve the four goals of
sentencing.2 In making this argument he focuses on
§ 3553(a)(2), which provides:
     (a) Factors to be considered in imposing a
     sentence. — The court shall impose a sentence
     sufficient, but not greater than necessary, to comply
     with the purposes set forth in paragraph (2) of this
     subsection. The court, in determining the particular
     sentence to be imposed, shall consider —
                                 *******
     (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
     and vocational training, medical care, or other
     correctional treatment in the most effective manner;
18 U.S.C. § 3553(a)(2). In his view, this plain language
establishes an upper limit on a district court’s sentencing
authority and unambiguously prevents a district court from

2. Because Kellum did not object at his sentencing to the district court’s
sentence, it is reviewed for plain error. United States v. Couch, 291 F.3d
251, 252-53 (3d Cir.), cert. denied, 537 U.S. 1038 (2002).
                             6


imposing a sentence that is so excessive that it exceeds the
purposes of sentencing. Put another way, Kellum argues
that by using the imperative “shall,” Congress explicitly
precluded district courts from imposing sentences that
plainly exceeded that which is necessary to fulfill the four
delineated purposes of sentencing. We disagree.
  Kellum has produced no authority for this position.
Furthermore, Kellum’s argument is based upon an
extraction of only those portions of § 3553(a) that favor his
argument. However, § 3553(a) sets forth a number of other
factors that a sentencing court must consider when
sentencing. It provides:
    a) Factors to be considered in imposing a sentence.
    —The court shall impose a sentence sufficient, but not
    greater than necessary, to comply with the purposes
    set forth in paragraph (2) of this subsection. The court,
    in determining the particular sentence to be imposed,
    shall consider—
    (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—
    (A) the applicable category of offense committed by the
    applicable category of defendant as set forth in the
    guidelines—
                              7


    (I) issued by the Sentencing Commission pursuant to
    section 994(a)(1) of title 28, United States Code, subject
    to any amendments made to such guidelines by act of
    Congress (regardless of whether such amendments
    have yet to be incorporated by the Sentencing
    Commission into amendments issued under section
    994(p) of title 28); and
    (ii) that, except as provided in section 3742(g), are in
    effect on the date the defendant is sentenced; or
    (B) in the case of a violation of probation or supervised
    release, the applicable guidelines or policy statements
    issued by the Sentencing Commission pursuant to
    section 994(a)(3) of title 28, United States Code, taking
    into account any amendments made to such guidelines
    or policy statements by act of Congress (regardless of
    whether such amendments have yet to be incorporated
    by the Sentencing Commission into amendments
    issued under section 994(p) of title 28);
    (5) any pertinent policy statement—
    (A) issued by the Sentencing Commission pursuant to
    section 994(a)(2) of title 28, United States Code, subject
    to any amendments made to such policy statement by
    act of Congress (regardless of whether such
    amendments have yet to be incorporated by the
    Sentencing Commission into amendments issued
    under section 994(p) of title 28); and
    (B) that, except as provided in section 3742(g), is in
    effect on the date the defendant is sentenced.
    (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.
18 U.S.C. § 3553(a). In addition, Section 3553(b) states that
the district court must sentence the defendant within the
sentencing guideline range unless the court finds an
aggravating or mitigating circumstance not taken into
account by the Sentencing Commission. 18 U.S.C.
                                       8


§ 3553(b). Therefore, the considerations in § 3553(a)(2) are
not the only factors that a district court must consider
when imposing a sentence.
  Furthermore, the statutory sentencing provisions do not
begin with § 3553. Rather, they begin with § 3551, and
subsection (a) thereof begins the chapter concerning
sentencing as follows:
     Except as otherwise specifically provided, a defendant
     who has been found guilty of an offense described in
     any Federal statute, including sections 13 and 1153 of
     this title, other than an Act of Congress applicable
     exclusively in the District of Columbia or the Uniform
     Code of Military Justice, shall be sentenced with the
     provisions of this chapter so as to achieve the purposes
     set forth in subparagraphs (A) through (D) of section
     3553(a) to the extent that they are applicable in light of
     all the circumstances of the case.
18 U.S.C. § 3551(a) (emphasis added). Thus, a district court
must refer to the purposes outlined in § 3553(a)(2), “except
as otherwise specifically provided.” However, the mandatory
minimum sentences Kellum was exposed to pursuant to 18
U.S.C. § 924(c)3 and 21 U.S.C. § 841(b)(1)(A)4 clearly fit
within the “except as otherwise specifically provided”
exclusion of § 3551(a).
  Moreover, it is clear that Congress intended that
mandatory minimum sentences are not to be affected by
the general considerations of § 3553(a)(2) because that
statute provides the authority for the district court to
depart below the statutorily mandated minimum sentence.
Subsection (e) allows “a sentence below a level established
by statute as a minimum sentence” only upon a

3. A person convicted of carrying a gun in relation to a drug trafficking
crime “shall, in addition to the punishment provided for such . . . drug
trafficking crime . . . be sentenced to a term of imprisonment of not less
than 5 years.”
4. “In the case of a violation of subsection (a) of this section involving (iii)
50 grams or more of a mixture or substance . . . which contains cocaine
base . . . such person shall be sentenced to a term of imprisonment
which may not be less that 10 years or more than life.”
                                   9


government motion for substantial assistance and
subsection (f) allows a sentence “without regard to any
statutory minimum sentence” if the “safety valve” factors
are established. 18 U.S.C. §§ 3553(e), (f). These two narrow
exceptions are the only authority a district court has to
depart below a mandatory minimum sentence, and neither
circumstance is present here.5 United States v. Santiago,
201 F.3d 185, 187 (3d Cir. 1999) (“Any deviation from the
statutory minimum sentence can only be had through the
specific procedures established through 18 U.S.C.
§§ 3553(e), 3553(f). . . .”); United States v. Villar, 184 F.3d
801, 803 (8th Cir. 1999). See also United States v.
Melendez, 55 F.3d 130, 135 (3d Cir. 1995) (“[A] motion
under U.S.S.G. § 5K1.1 unaccompanied by a motion under
18 U.S.C. § 3553(e) does not authorize a sentencing court
to impose a sentence lower than a statutory minimum.”).
  Accordingly, it is now clear that § 3553(a) did not give the
district court the authority to sentence Kellum below the
statutorily mandated minimum sentence here. Therefore,
we will affirm the judgment of conviction and sentence.6



5. The district court clearly understood this. Indeed, we do not doubt
that it was the district court’s understanding of the extreme limits on
sentencing discretion that caused the court to observe that it must
mechanically impose a sentence whether or not it considered the
sentence to be just.
6. Although we must affirm the judgment of sentence, we agree with the
concerns the sentencing court expressed in imposing a sentence that it
believed to be so extreme and harsh as to be unjust.
  Such expressions are not new, and the sentencing court here was not
alone in expressing these concerns. Such concerns have been expressed
by scholars and courts alike for well over a decade. See, Michael Tonry,
Mandatory Minimum Penalties and the U.S. Sentencing Commission’s
Mandatory Guidelines, 4 Fed. Sent. R. 129 (1991).
  The respected sentencing judge here had decades of experience
overseeing criminal prosecutions and imposing sentences. That very
valuable experience and the wisdom and context it might have otherwise
afforded the choice of an appropriate punishment was negated by the
spreadsheet calculus that has now displaced thoughtful and
                                   10


A True Copy:
        Teste:

                       Clerk of the United States Court of Appeals
                                   for the Third Circuit




individualized sentencing. The court was therefore forced to mechanically
apply a retributive sentencing scheme that has been widely criticized and
which is driven by considerations of incapacitation rather than a policy
of focused, and individualized sentencing.
  We can only hope that the concerns expressed by such experienced
jurists are heeded by the Sentencing Commission and Congress as they
reassess the policies underlying the current sentencing guidelines.
