                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2008

USA v. Watson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2899




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NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                            Case No: 07-2899

                    UNITED STATES OF AMERICA

                                      v.

                   DONOVAN ANTHONY WATSON
                              a/ka
                     ERROL ANTHONY YOUNG
                              a/k/a
                       CHAUNLEY MILLER
                              a/k/a
                         MARK SAULTER
                              a/k/a
                         OLIVER COHAIN
                              a/k/a
                         OSWALK TAIWO
                              a/k/a
                       RAYMOND WALKER,

                            Donovan Anthony Watson,

                                           Appellant


              On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
                        District Court No. 06-CR-707
               District Judge: The Honorable Anita B. Brody


             Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                               July 3, 2008

          Before: RENDELL, SMITH, and FISHER, Circuit Judges

                                     1
                                   (Filed: July 8, 2008 )


                                         OPINION


SMITH, Circuit Judge.

       On March 14, 2007, Donovan Anthony Watson, a Jamaican citizen, pleaded guilty

in the United States District Court for the Eastern District of Pennsylvania to a single

count of reentry after deportation in violation of 8 U.S.C. § 1326(a) and § 1326(b)(2).

The Presentence Investigation Report (“PSR”) calculated Watson’s Sentencing Guideline

range as 57 to 71 months.1 At sentencing, Watson urged the District Court to consider the

fact that the Eastern District did not have a fast-track sentencing program for aliens

convicted of violating § 1326 and requested a variance below his Guideline range. The

Court considered the absence of a fast-track sentencing program, but it declined to impose

a sentence below the Guideline range. This timely appeal followed.2

       Watson alleges that his sentence “was imposed as a result of an incorrect

application of the sentencing guidelines.” 18 U.S.C. § 3742(e)(2). Specifically, Watson

argues that the District Court did not understand its authority to vary from the Guidelines

under 18 U.S.C. § 3553(a) because of the absence of a fast-track program. Watson
   1
    This Guideline range is based on an Adjusted Offense Level of 21 and a Criminal
History Category of IV. The findings in the PSR are not challenged by either party.


   2
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v.
Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).

                                              2
concedes that the absence of a fast-track sentencing program is not an unwarranted

sentencing disparity under § 3553(a)(6) in light of our decision in United States v. Vargas.

477 F.3d 94, 98 (3d Cir. 2007) (“[T]he disparity between sentences in fast-track and non-

fast-track districts is authorized by Congress, and, hence, warranted.”). Because Vargas

does not foreclose consideration of the absence of a fast-track sentencing program under §

3553(a)’s other factors, Watson argues that certain statements made by the District Court

during sentencing show that the Court believed a variance based on fast-track disparity

was only authorized under § 3553(a)(6). The record illustrates that the District Court did

understand its authority to vary below the Guideline range. As such, we will affirm the

judgment of the District Court.

       Watson alleges an error similar to the one addressed by this Court in United States

v. Gunter, where we held that a district court erred by treating the Guidelines as effectively

mandatory when it did not recognize its authority to vary from the Sentencing

Commission’s crack cocaine Guideline range. 462 F.3d 237, 247-49 (3d Cir. 2006).

Gunter involved a “non-constitutional” Booker error–where a district court fails to

recognize its authority to exercise complete discretion during its evaluation of the §

3553(a) factors. See id. at 247. Because this presents a question of law, our review is

plenary. Id.

       We are fully aware, however, that sentencing judges’ remarks “are unlikely to be a

perfect or complete statement of all of the surrounding law.” United States v. Cooper, 437



                                              3
F.3d 324, 330 n.8 (3d Cir. 2006) (internal citation and quotation marks omitted).

Furthermore, this Court has “repeatedly held that district courts are under no obligation ‘to

routinely state by rote that they have read the Booker decision or that they know the

sentencing guidelines are now advisory.’” Vargas, 477 F.3d at 102 (quoting Cooper, 437

F.3d at 329).

       During the sentencing colloquy, the District Court “recognize[d] that the sentencing

guidelines are no longer mandatory,” and stated that it “must determine the facts

appropriate for imposing a reasonable sentence that is either a guideline sentence or a non-

guideline sentence.” After sentencing, the District Court also commended Watson’s

counsel, Ms. Toplin, for “do[ing] an exceedingly good job in bringing up every factor that

I would possibly consider in sentencing . . . .” Moreover, examination of the sentencing

transcript clearly illustrates that the District Court considered the totality of the

circumstances, including the § 3553(a) factors, the absence of a fast-track program, and

Watson’s personal situation. See 18 U.S.C. § 3661.

       Watson relies heavily on the District Court’s statement, “I will take it into

consideration, but I will only take it into consideration in – in deciding where in the

guideline range I’m going to sentence you” to prove his point. Watson’s reliance is

misplaced, however, as this statement was taken out of context and is merely an

explanation by the Court that it chose to place substantial weight on the seriousness of the

offense and Watson’s recidivism, thereby sentencing closer to the bottom of the Guideline



                                                4
range. Because we conclude that the District Court understood its authority to impose a

sentence below the guideline range based on fast-track disparity, we will affirm the

judgment of the District Court.




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