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


6-2-2009

USA v. Robert Pitts
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2585




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Recommended Citation
"USA v. Robert Pitts" (2009). 2009 Decisions. Paper 1248.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1248


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                                          NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT




                  No. 08-2585




       UNITED STATES OF AMERICA

                       v.

              ROBERT L. PITTS,
                            Appellant.


 On Appeal from the United States District Court
     for the Middle District of Pennsylvania
          (D. C. No. 1-05-cr-00415-001
   District Judge: Hon. William W. Caldwell


   Submitted under Third Circuit LAR 34.1(a)
               on March 3, 2009

Before: BARRY, WEIS and ROTH, Circuit Judges

          (Opinion filed: June 2, 2009)




                 OPINION
ROTH, Circuit Judge:

          Robert Pitts appeals from a judgment of sentence after pleading guilty to attempting

to distribute and possessing with intent to distribute cocaine hydrochloride, a Schedule II

controlled substance, in violation of 21 U.S.C. § 846. The District Court had jurisdiction

pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). We review the District Court’s sentence for “reasonableness with regard

to the factors set forth in 18 U.S.C. § 3553(a).” United States v. Bungar, 478 F.3d 540, 542

(3d Cir. 2007). Reasonableness review entails an inquiry into “whether the trial court abused

its discretion.” Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2465 (2007). We will

affirm.

          In a prior appeal, this Court remanded for re-sentencing based on the District Court’s

erroneous belief that it must follow the Sentencing Guidelines absent an extraordinary

situation; however, we rejected Pitts’s contention that he deserved a departure from the

Guidelines pursuant to U.S.S.G. § 5K1.1. See United States v. Pitts, 261 F. App’x 377, 379

(3d Cir. 2008). Pitts now argues that the District Court erred on re-sentencing by failing to

discuss the disparity in sentences between Pitts and a co-defendant whom he characterizes as

“equally culpable.” Pitts received a within-Guidelines sentence of 151 months, while his co-

defendant received a sentence of 96 months. We reject Pitts’s argument.

          First, defendant’s counsel made only a passing reference to the sentence imposed on

his co-defendant during the sentencing proceeding, and no disparity argument was made either



                                                2
as an objection to the presentence report or as part of the written Memorandum of Law filed

in conjunction with the sentencing proceeding. Though a district court ought generally to

discuss all non-frivolous arguments made by counsel concerning sentencing disparities, see

United States v. Goff, 501 F.3d 250, 256 (3d Cir. 2007), here, the brief reference to the

sentence imposed on Pitts’s co-defendant did not place a disparity issue squarely before the

District Court. See United States v. Grier, 475 F.3d 556, 571 & n.11 (3d Cir. 2007).

       Second, there is no indication that the co-defendant was similarly situated with Pitts.

Indeed, the record belies Pitts’s claim that they were “equally culpable,” as it reflects that Pitts

was the organizer of the illegal activity while his co-defendant merely met on one occasion

with an undercover officer. Moreover, Pitts’s co-defendant received the benefit of a U.S.S.G.

§ 5K1.1 departure based on his continued substantial assistance to the government. Pitts

received no such departure, and, as noted, we have already held that the government’s

decision not to file a § 5K1.1 Motion for Pitts was proper under these circumstances.

       Accordingly, we will affirm the judgment of sentence.




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