                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2163




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                                    No. 05-2163
                                 _________________

                                   ERIC NABRIED,

                                                  Appellant

                                           v.

                           UNITED STATES OF AMERICA

                                   ______________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                       (D.C. Criminal Action No. 03-cr-309-10)
                      District Judge: Honorable Edwin M. Kosik
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 21, 2006

                   Before: SLOVITER and AMBRO, Circuit Judges,
                             and DuBOIS,* District Judge

                            (Opinion filed: August 29, 2006)
                                  ________________

                                      OPINION
                                  ________________

DuBOIS, District Judge
                         I. Facts and procedural background


      *
       Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
       On November 4, 2003, a federal grand jury returned a 24-count indictment against

numerous defendants alleging a drug conspiracy. Appellant Eric Nabried (“Nabried”)

was charged in Count 4 with possession with intent to distribute cocaine base (“crack”)

and distribution of crack in violation of 21 U.S.C. § 841(a)(1). Nabried pled guilty to this

charge on November 2, 2004, stipulating that the amount of crack involved was between

five and fifteen grams.

       Under the United States Sentencing Guidelines (“Guidelines”), the base offense

level for Nabried’s conviction was 26, and his criminal history category was V.1 Nabried

received a three-point downward adjustment for acceptance of responsibility, giving him

a total offense level of 23. At Nabried’s sentencing on April 5, 2005, the government

argued that Nabried should be sentenced under the career offender provision of the

Guidelines, § 4B1.1, because he had been previously convicted of at least two felony

offenses involving a controlled substance. Defense counsel argued that the career

offender status over-represented Nabried’s criminal history.

       With a total offense level of 23 in criminal history category V, Nabried faced a

Guideline range of 84 to 105 months. However, the District Court determined that the



       1
          Nabried had two juvenile delinquency adjudications, one for driving a stolen car
and one for attempted car theft. At age 19, he was arrested for and pled guilty to
possession of cocaine, for which he was sentenced to pay a fine and costs. App. at 43. At
age 20, he pled guilty to delivering crack and was sentenced to a term of five months to
two years imprisonment. Id. Two months after the arrest for that crime, Nabried was
arrested for possession with intent to deliver marijuana; he pled guilty and was sentenced
to four to eighteen months imprisonment. Id.

                                             2
career offender provision of the Guidelines was applicable, which increased Nabried’s

total offense level to 29 and his criminal history category to VI, resulting in a Guideline

imprisonment range of 151 to 188 months. Nabried was sentenced to 110 months.

       On appeal, Nabried argues that the District Court erred in applying the career

offender provision of the Guidelines because United States v. Booker, 543 U.S. 220

(2005), made the Sentencing Guidelines, including the career offender provision,

advisory. He further argues that his 110-month sentence was unreasonable, because a

lesser sentence of 84 months would have accomplished the goals of sentencing. For the

following reasons, we disagree, and affirm the sentence of the District Court.

                                      II. Discussion

    A. Is the Career Offender Provision of the Sentencing Guidelines Advisory?

       Since the Supreme Court’s decision in Booker, the Guideline sentencing range is

one of several factors a district court must consider under 18 U.S.C. § 3553(a), but a

district court is no longer bound by the Guidelines. Booker, 543 U.S. at 259, 264. The

Third Circuit Court of Appeals has not specifically addressed whether United States v.

Booker also made the career offender provision of the Guidelines advisory. However, we

have stated that, in determining a defendant’s sentence under the § 3553(a) factors, “a

trial court must calculate the correct guideline range applicable to a defendant’s particular

circumstances.” United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006) (emphasis

added); see also United States v. King, 454 F.3d 187, 196 (3d Cir. 2006) (emphasizing

that “the sentencing courts in this Circuit should continue to follow the requirement to

                                              3
‘consider’ the Guidelines by calculating a Guidelines sentence as they would have before

Booker”). Other circuit courts specifically considering the career offender provision of

the Guidelines have found that the provision is not advisory, and must be applied in

calculating the advisory Guidelines sentencing range if the defendant qualifies as a career

offender. See, e.g., United States v. Berni, 439 F.3d 990, 992 (8th Cir. 2006) (“The

determination of whether to apply the career offender Guidelines to calculate the advisory

Guidelines range is not a matter left to the district court’s discretion. Rather, sentencing

courts must correctly determine the applicable Guidelines range in order to properly carry

out the sentencing process under § 3553(a).”); United States v. Gibson, 434 F.3d 1234,

1248 (11th Cir. 2006) (finding legal error where sentencing court failed to determine

whether defendant’s prior convictions qualified him for career offender status). We

agree, and hold that a sentencing court must calculate the correct sentence under the

Guidelines, including, if applicable, § 4B1.1, the career offender provision.2

       In Nabried’s case, the government argued that the career offender provision of the

Guidelines was applicable based on his previous convictions for distribution of cocaine

and possession with intent to distribute marijuana as detailed in footnote 1 supra. Under

§ 4B1.1(a), these two felony drug convictions qualified him as a career offender. Thus,

the District Court was required to consider the career offender enhancement in calculating

       2
          Allowing the court, as opposed to a jury, to find that a defendant is a career offender
does not violate United States v. Booker. See Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998) (holding that a court may determine whether a defendant’s prior crime was an
“aggravated felony”); United States v. Andrews, 447 F.3d 806, 811 (10th Cir. 2006) (holding that
district court did not commit Booker error by applying career offender enhancement).

                                               4
the applicable sentence under the Guidelines.

                 B. Was the District Court’s Sentence Unreasonable?

       We note at the outset that the Court of Appeals has jurisdiction to review the

reasonableness of a sentence under 18 U.S.C. § 3742(a)(1) (authorizing the appeal of

sentences “imposed in violation of the law”). See Cooper, 437 F.3d at 327.

       To determine whether the sentence of 110 months imposed on Nabried by the

District Court was reasonable, we must first ensure that the District Court exercised its

discretion and considered the relevant sentencing factors articulated in 18 U.S.C. §

3553(a).3 Cooper, 437 F.3d at 329. The District Court need not perform a rote recitation



       3
       Those factors are:
      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 . . . the
             applicable category of offense committed by the applicable category of
             defendant as set forth in the guidelines.
      5.     Any pertinent policy statement . . . issued by the Sentencing Commission
             . . . that . . . 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).

                                             5
of these factors so long as the record demonstrates that the court meaningfully considered

the relevant factors. Cooper, 437 F.3d at 329; see also United States v. Gatewood, 438

F.3d 894, 896 (8th Cir. 2006) (“We do not require a rote recitation of each § 3553(a)

factor.”).

       In Nabried’s case, the District Court heard argument regarding many of the

§ 3553(a) factors, including:

       •      The nature of the offense, App. at 69, 74;

       •      Nabried’s criminal history, App. at 63-65;

       •      Whether the career offender designation overrepresented Nabried’s criminal

              history and provided too severe a punishment, App. at 63-65;

       •      Disparities between Nabried’s sentence and the sentences of other

              defendants in the drug conspiracy, App. at 67-68;

       •      The likelihood of recidivism, and the need to protect the public, App. at 64-

              65, 72;

       •      Nabried’s individual characteristics, such as his employment history, drug

              addiction, medical problems, age, and family relationships, App. at 66, 67,

              68, 69, 71, 73; and,

       •      Nabried’s participation in employment and drug rehabilitation programs

              while incarcerated, App. at 70, 75;

The District Court stated several times that it had considered the arguments made by

defense counsel, App. at 53, 76, 77, including, specifically, the argument that the career

                                             6
offender status over-represented Nabried’s culpability. App. at 77.

       We note that the Third Circuit has interpreted Booker to require a district court to

do more than simply state on the record that “it considered both the defendant’s

arguments and the § 3553(a) factors.” Cooper, 437 F.3d at 329 n.6. The more detail a

district court provides on the record when it imposes a sentence under § 3553(a), the

easier it is for the Court of Appeals to engage in “meaningful appellate review.” King,

454 F.3d at 196-97. While the record in this case is not as complete as we would like, we

conclude that the sentencing court did sufficiently consider the § 3553(a) factors.

       After hearing argument on the above noted § 3553(a) factors, the District Court

made several statements regarding Nabried’s sentence. The Court acknowledged the

goals of sentencing. App. at 60. It expressed concern that one of Nabried’s previous

offenses occurred while he was on pretrial release for another offense, and that the federal

crime resulting in this sentence was committed within seven months of his release on

parole for that offense. App. at 72-73. The Court also commented that “I do believe,

especially now when the Guidelines are just advisory, that we have a greater

responsibility for giving consideration to the total circumstances of the individual who is

before us.” App. at 77.4 In conclusion, the Court stated:

       I sentence an individual, and do in this case, using the Guidelines as being

       advisory, but not being handcuffed by them. I – I do so, giving consideration, the


       4
        The District Court noted at other points in the record that the Guidelines were now
advisory, and just one factor to be considered under 18 U.S.C. § 3553(a). App. at 57, 59.

                                               7
       sentence that we’re going to impose would not be a Guideline sentence, but it will

       be a sentence that’s considered your argument, including your argument about the

       career offender status of this defendant.

App. at 77. Thus, we conclude that the sentencing court considered the 18 U.S.C. §

3553(a) factors applicable to Nabried.

       Next, we must determine whether the sentencing court reasonably applied the §

3553(a) factors. Cooper, 437 F.3d at 330. In doing so, we apply a deferential standard of

review. Id. We find nothing unreasonable about Nabried’s sentence of 110 months.

With the proper application of the career offender provision, Nabried’s Guideline

sentencing range was 151 to 188 months, making the ultimate sentence of 110 months

well below what it would have been before Booker rendered the Guidelines advisory. If it

is “less likely that a within guidelines sentence . . . will be unreasonable,” Cooper, 437

F.3d at 331, it is even less likely that a sentence below the Guidelines sentence will be

unreasonable. Nabried, who has the burden of showing unreasonableness, id. at 332, has

not met this burden.

                                      III. Conclusion

       Based on the foregoing analysis, we conclude that the District Court gave proper

consideration to the applicable § 3553(a) factors and that the sentence of 110 months

imposed on Nabried was reasonable. The judgment of the District Court is therefore

affirmed.



                                              8
