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


6-22-2009

USA v. Dwayne McLean
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3064




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"USA v. Dwayne McLean" (2009). 2009 Decisions. Paper 1158.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1158


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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 08-3064


                            UNITED STATES OF AMERICA

                                            v.

                                  DWAYNE McLEAN,
                                              Appellant




                           On Appeal From the United States
                                      District Court
                             For the District of New Jersey
                       (D.C. Crim. Action No. 2-07-cr-00973-001)
                         District Judge: Hon. William H. Walls


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 22, 2009

                BEFORE: RENDELL, STAPLETON and ALARCON,*
                              Circuit Judges

                             (Opinion Filed: June 22, 2009)




*Hon. Arthur L. Alarcon, Senior United States Circuit Judge for the Ninth Circuit, sitting
by designation.
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Appellant Dwayne McLean pled guilty to conspiring to distribute 100 grams or

more of heroin. He was sentenced to a term of 188 months, to be followed by four years

of supervised release. In this appeal, McLean contends that this sentence is procedurally

flawed and substantively unreasonable.

       The presentence report revealed that McLean was 27 years old, that he had three

state felony drug convictions and a conviction for resisting arrest, and that he had

committed the instant offense while on parole. The report found him to be a career

offender under U.S.S.G. § 4B1.1 and concluded that his advisory Guidelines range was

188 to 235 months. If the career offender designation had been disregarded, the range

would have been 92 to 115 months.

       In his sentencing brief and his oral argument at sentencing, McLean argued (1) that

his Guidelines range should be calculated without the career offender provision because

its reliance on state drug felonies was inconsistent with congressional intent; and (2) that

he was entitled to a variance under 18 U.S.C. § 3553 because the Guidelines range

calculated with the career offender provision provided for a sentence that was



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significantly “greater than necessary” to address McLean’s conduct and, accordingly,

unreasonable. At the sentencing hearing, the District Court invited argument on both the

initial “Guideline step” and the third “§ 3553 factor” step, listened to the responding

argument, expressly recognized its authority to grant a variance, and explained at some

length its conclusions (1) that Congress had intended to include state drug convictions

and had clearly so provided in the relevant statutory text, and (2) that a sentence at the

bottom of the Guidelines range (utilizing the career offender provision) would not be

greater than necessary to serve the objectives of § 3553, primarily because of the

seriousness of the offense and McLean’s criminal history. Based on our reading of the

sentencing hearing transcript, we are satisfied that counsel was given a fair opportunity to

address these arguments and that the District Court’s response met its responsibility to

explain its reasoning.

       Before us, McLean insists that he made a third argument in his sentencing brief

which the District Court cut him off from addressing at the sentencing hearing and upon

which it improperly failed to comment. This argument is described in McLean’s reply

brief as a contention that he is entitled to a variance from the Guidelines range calculated

with the career offender enhancement because that “enhancement [is] historically

flawed.” Reply Br. at 5. This contention is advanced in McLean’s sentencing brief as

follows:

              B.     Research Indicates That The Career Offender
              Provision, Especially As Applied To Offenders With Prior

                                              3
              Drug Trafficking Convictions, Results In Sentences That Are
              Greater Than Necessary To Serve The Purposes of
              Sentencing.

               The Sentencing Commission has identified the career offender
       provision as a flawed means of achieving the purposes of sentencing,
       especially when applied to offenders whose prior convictions involved drug
       trafficking. In its fifteen-year review, it framed the question facing
       policymakers as “whether the career offender guideline, especially as it
       applies to repeat drug traffickers, clearly promotes an important purpose of
       sentencing. See UNITED STATES SENTENCING COMMISSION, FIFTEEN YEARS
       OF GUIDELINES SENTENCING, AN ASSESSMENT OF HOW WELL THE FEDERAL
       CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING
       REFORM,   at 134 (November 2004) [hereinafter “Fifteen-Year Report”]. The
       Commission cited testimony indicating that the career offender provision
       may not serve the protective function very well when applied to offenders
       with prior drug trafficking convictions, as opposed to offenders with prior
       violent convictions, because drug traffickers are easily replaced. See id.
       “Incapacitating a low-level drug seller prevents little, if any, drug selling;
       the crime is simply committed by someone else.” Id. Despite its seriously
       questionable utility, however, the career offender provision continues to
       exact harsh punishment of those who come within its broad sweep.

       McLean did not argue at the sentencing hearing that the Commission had deemed

the career offender provision a “flawed” means of achieving the purposes of sentencing.

App. at 31. It cannot fairly be said, however, that this was attributable to the District

Court’s precluding him from doing so. Whether the District Court addressed this

contention at the hearing depends on how it is understood. In his reply brief before us,

McLean explains that “the very point was that in his case, the career offender

enhancement did not lead to a sentence that was consistent with the goals of sentencing

retribution, deterrence, protection of the public and rehabilitation.” Reply Br. at 7-8

(emphasis in original). If this was the “point,” we fail to see how it differs from his

                                              4
second argument, and the District Court clearly considered and addressed it. To the

extent McLean’s sentencing brief is read to argue that the career offender enhancement

should be ignored in cases involving all non-violent, repeat drug offenders, it is true that

the District Court did not comment on it. Its failure to do so is understandable, however.

At the time, our Third Circuit case law clearly foreclosed the District Court from

considering such an argument. See United States v. Levinson, 543 F.3d 190, 201 n.8 (3d

Cir. 2008) (nothing in Kimbrough or in our own jurisprudence leaves a district court free

to state its own general sentencing policies in contravention of the Guidelines”); United

States v. Gunter, 527 F.3d 282, 286-87 (3d Cir. 2008) (reaffirming that district courts may

not categorically reject a Guideline provision for policy reasons that are unmoored to the

facts of the case before it and rejecting procedural reasonableness challenge where “most

of [defendant’s] arguments at sentencing concerned only general policy”); United States

v. Goff, 501 F.3d 250, 261 n.18 (3d Cir. 2007) (observing “that sincerely held policy

disagreements with the weight of sentences generally called for by the Guidelines in

certain categories of cases . . . are not a basis for bypassing the Guidelines”).

       Since the time of McLean’s sentencing, however, the Supreme Court in Spears v.

United States, 129 S. Ct. 840 (Jan. 21, 2009), held “that district courts are entitled to

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

disagreement with those Guidelines.” The Court then vacated and remanded our decision

in Gunter to us for reconsideration in light of its Spears decision. Based on Spears, we



                                               5
believe a district court in determining the weight to be given the Guideline range at the

third variance step in its sentencing analysis is entitled to reject the policy judgments

reflected in the career offender Guideline.

       Because the District Court in this case undoubtedly and understandably believed it

was without authority to consider McLean’s third argument, we will vacate and remand

for resentencing only. In so doing, we express no opinion regarding the merit of that

argument.

       The judgment of the District Court will be vacated and the case will be remanded

to the District Court for resentencing.




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