                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 09-3937
                      ____________

            UNITED STATES OF AMERICA

                            v.

                     ZIA BERISHA,

                            Appellant.
                      ____________

      On Appeal from the United States District Court
               for the District of New Jersey
                   (D.C. No. 09-cr-00017)
        District Judge: Honorable Robert B. Kugler

                      ____________

        Submitted Under Third Circuit LAR 34.1(a)
                      July 1, 2010

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges.

                   (Filed:July 2, 2010)


                      ____________

               OPINION OF THE COURT
                    ____________
HARDIMAN, Circuit Judge.

       Zia Berisha pleaded guilty to conspiracy to distribute ecstacy in violation of 21

U.S.C. § 846. The District Court imposed a sentence of 176 months incarceration and

Berisha filed this timely appeal, challenging only his sentence. Berisha claims the

District Court abused its discretion when it denied his motion for a downward departure

for overstated criminal history pursuant to § 4A1.3(b)(1) of the United States Sentencing

Guidelines (USSG or Guidelines). We will affirm.

                                              I.

       Because we write for the parties, who are familiar with the facts and procedural

history of the case, we recount only those aspects of the case that are essential to our

decision.

       Berisha pleaded guilty, pursuant to a written plea agreement with the Government,

to a one-count information charging him with conspiring to distribute and possess with

intent to distribute 3,4-methylenedioxy-methamphetamine (ecstacy) from May 2006 to

November 2006. The plea agreement stipulated a base offense level of 28, a 2-level

enhancement for being an organizer of the criminal activity, and a 3-level reduction for

timely acceptance of responsibility, resulting in a total offense level of 27.

       Pursuant to the plea agreement, neither Berisha nor the Government would appeal

the sentence if it fell within or below the Guidelines range associated with a total offense

level of 27. The plea agreement cautioned that “[t]his agreement to stipulate, however,



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cannot and does not bind the sentencing judge, who may make independent factual

findings and may reject any or all of the stipulations entered into by the parties.”

Moreover, the plea agreement did not include any stipulations regarding Berisha’s

criminal history category and each party reserved the right to appeal the District Court’s

determination in that regard.

       The calculations contained in the Presentence Investigation Report (PSR) differed

in several ways from the plea agreement. First, the PSR attributed a much higher quantity

of drugs to Berisha, including large amounts of oxycodone. The PSR also rejected any

role enhancement, finding that Berisha was equally responsible with his partner for the

drug distribution. Most relevant here, the probation office found Berisha to be a career

offender under USSG § 4B1.1 based on past convictions for possession of cocaine with

intent to distribute and aggravated assault with bodily injury.

       Berisha objected to the PSR’s inclusion of conduct related to oxycodone

distribution and to his classification as a career offender. He also moved for a downward

departure under USSG § 4A1.3(b)(1) based on overstated criminal history. Berisha

argued that, though the prior convictions cited by the PSR technically satisfied the

requirements of USSG § 4B1.1, career offender status overrepresented the seriousness of

those charges because he was sentenced to only probation in each case.

       At the sentencing hearing, the District Court heard testimony from the FBI case

agent regarding the quantity of drugs for which Berisha should be held responsible. The



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Court also invited argument regarding Berisha’s motion for a downward departure. At

the conclusion of the testimony and argument, the District Court concluded that Berisha

could be held responsible for some, but not all, of the oxycodone cited in the PSR. In the

final analysis, however, this finding was not material, because Berisha’s offense level was

driven by his classification as a career offender, which resulted in a total offense level of

29. The District Court then rejected Berisha’s argument that his designation as a career

offender overstated the seriousness of his criminal history and denied his motion for a

downward departure, leaving him with a criminal history category of VI. Thus, Berisha

faced a Guidelines range of 151 to 188 months imprisonment. After considering the

factors in 18 U.S.C. § 3553(a) and statements from Berisha and his family, the District

Court sentenced Berisha to a within-Guidelines sentence of 176 months imprisonment, 4

years of supervised release, and a $100 special assessment.

       On appeal, Berisha argues that his sentence is unreasonable because the District

Court erred in denying his motion for downward departure and in failing to meaningfully

consider all of the § 3553(a) factors. We consider these arguments in turn.

                                              II.

                                              A.

       Berisha’s argument that the District Court abused its discretion when it denied his

motion for a downward departure under USSG § 4A1.3 is plainly without merit. We lack

jurisdiction over a district court’s denial of a discretionary downward departure. See



                                              4
United States v. Vargas, 477 F.3d 94, 103 (3d Cir. 2007); United States v. Cooper, 437

F.3d 324, 332 (3d Cir. 2006). Jurisdiction arises only if the district court’s refusal was

based on the mistaken belief that it lacked discretion to depart, an argument Berisha has

not made here. See United States v. Dominguez, 296 F.3d 192, 194-95 (3d Cir. 2002).

                                             B.

       To the extent that Berisha argues that the District Court abused its discretion by

refusing to vary downward on the basis of his purportedly overstated criminal history

(and it is unclear that he does so) we reject that argument as well. See United States v.

Grier, 585 F.3d 138, 142 n.2 (3d Cir. 2009) (recognizing that, after United States v.

Booker, 543 U.S. 220 (2005), sentencing court may achieve effect of a § 4A1.3(b)(1)

departure by varying downward at the third stage of sentencing). Berisha contended that

the career offender enhancement exaggerated the seriousness of his past conduct because

he was sentenced only to probation on the predicate state offenses. The record

demonstrates that the District Court properly considered these arguments and rejected

them, finding that the career offender designation accurately reflected the substance of

Berisha’s criminal history, thereby weighing in favor of a within-Guidelines sentence.

       At the third stage of sentencing, when discussing the § 3553(a) factors, the District

Court went into great detail regarding the concerns raised by Berisha’s criminal history,

observing that Berisha had 17 prior arrests and 5 convictions, noting that the seriousness

of his offenses had escalated over time, and remarking that Berisha had not taken



                                              5
advantage of prior opportunities to reform his behavior. The District Court also rejected

Berisha’s argument in mitigation that he had only been sentenced to probation. The Court

noted that Berisha violated his probation and cited the observations of the state probation

officer that Berisha “made a poor adjustment to supervision.” For these reasons, the

District Court’s refusal to vary downward on this basis was not unreasonable.

                                             C.

       Berisha next contends that his sentence was procedurally unreasonable because the

District Court failed to adequately explain his sentence, as required by Gall v. United

States, 552 U.S. 38, 50 (2007). See United States v. Tomko, 562 F.3d 558, 567 (3d Cir.

2009) (en banc) (“[I]t is equally important that district courts provide courts of appeals

with an explanation ‘sufficient for us to see that the particular circumstances of the case

have been given meaningful consideration within the parameters of § 3553(a).’”).

Berisha concedes that the District Court “did review the pertinent § 3553 factors,” but he

argues that the Court placed disproportionate reliance on his “overstated prior criminal

history” and the need for deterrence.

       Our review of the record reveals that the District Court conscientiously considered

the relevant § 3553(a) factors and adequately explained its assessment of each one. In

addition to its discussion of Berisha’s criminal history, the Court noted the serious nature

of the drug conspiracy in which Berisha was intricately involved. The Court also

reviewed Berisha’s personal history, including his anger management issues and struggle



                                              6
with drug addiction. The Court explained why it was refusing the requests for leniency

from Berisha and his family members, stating that their willingness to intervene and

support Berisha could not alleviate the “serious and real risk of [Berisha] committing

further crimes in the future” as shown by their failure to intervene in the past and

Berisha’s escalating pattern of criminal conduct. It also touched on the need to avoid

unwarranted sentencing disparities, noting that Berisha’s co-defendant had received a

lower sentence because of differences in criminal history and relevant drug quantity.

Although the Court spent relatively more time discussing Berisha’s criminal history,

deterrence, and the need to protect the public from further crimes, the emphasis on these

factors was not unjustified because they were highly relevant under the circumstances.

       In sum, the District Court’s explanation of its sentence was sufficient to enable our

review for procedural and substantive reasonableness, and we find both standards

satisfied. See id. at 567. We will affirm the judgment of the District Court.




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