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


6-22-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3933




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-3933


                           UNITED STATES OF AMERICA

                                            v.

                                  RODNEY GORDON,

                                                 Appellant




                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                       (D.C. Criminal Action No. 02-cr-00227)
                      District Judge: Honorable James M. Munley


                       Submitted Under Third Circuit LAR 34.1(a)
                                     June 9, 2006

              Before: AMBRO, FUENTES and NYGAARD, Circuit Judges

                              (Opinion filed: June 22, 2006)




                                        OPINION


AMBRO, Circuit Judge

       Rodney Gordon was convicted by a jury of one count of possession with intent to

distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The United States District Court
for the Middle District of Pennsylvania sentenced him to 210 months imprisonment. He

appeals, arguing that his sentence is unreasonable under United States v. Booker, 543 U.S.

220 (2005). For the reasons provided below, we affirm.

                                            I.

       As we write for the parties, only a brief summary of pertinent facts and procedural

history is necessary. Gordon’s drug conviction prompted the preparation of a presentence

report (“PSR”). According to the PSR, Gordon’s offense, which involved at least 25 but

less than 50 grams of cocaine, normally carried a Sentencing Guidelines range of 37 to 46

months imprisonment. His extensive criminal history, however, triggered the application

of the career offender enhancement under U.S.S.G. § 4B1.1. As a result, the sentencing

range became 262 to 327 months. Gordon did not object to the PSR and, at sentencing,

the District Court imposed a 262-month term—the bottom of the then-mandatory

Guidelines range.

       Gordon timely appealed, challenging only the District Court’s pre-trial ruling

denying his motion to suppress evidence. In a not precedential opinion filed August 10,

2004, we affirmed the judgment of conviction and sentence. United States v. Gordon,

104 Fed. Appx. 275, 278 (3d Cir. 2004). Gordon petitioned for certiorari to the United

States Supreme Court. It granted certiorari, vacated the judgment, and remanded the case

to us for reconsideration in light of United States v. Booker. Gordon v. United States, 544

U.S. 901 (2005). We reinstated our judgment affirming Gordon’s conviction but



                                             2
remanded the case to the District Court for resentencing. On August 10, 2005, the

District Court, departing 52 months from the low end of Gordon’s advisory Guidelines

range, resentenced him to 210 months imprisonment. This appeal nonetheless followed.

                                             II.

       Despite the District Court’s 52-month downward departure from his advisory

Guidelines range, Gordon insists that his sentence is excessive and unreasonable because

his offense only involved a small quantity (27.2 grams) of powder cocaine. This ignores

the fact that Gordon’s lengthy sentence is largely attributable to his extensive criminal

history and not the drug quantity involved in his offense conduct. The record reflects

that, from April 1990 until the present, Gordon was convicted at least eight times.

Indeed, he has accrued four separate convictions for distribution and/or possession with

intent to distribute cocaine. Three of those convictions were consolidated for sentencing

and Gordon received concurrent jail sentences of 11½ to 23 months imprisonment.

Unfortunately, Gordon violated his parole and was sentenced to serve back time. On his

release, he was found in Philadelphia in possession of a stolen car and was sentenced to

time served and probation. That probation was revoked, however, due to a conditions

violation.

       Gordon moved from Philadelphia to Williamsport, where he continued to be

involved in criminal conduct. In 1996, he was convicted of possession with intent to

deliver 40 packs of cocaine and sentenced to 30 to 60 months imprisonment. The next



                                              3
year, he was convicted of theft and sentenced to one year probation. Gordon returned to

Philadelphia and in 1999 was convicted of robbery and criminal conspiracy; the sentence

was one to three years imprisonment. Staying true to form, he committed his current drug

trafficking crime while on probation.

       Gordon has five predicate convictions—including three drug felonies and a

robbery conviction—which qualify him as a career offender under the Sentencing

Guidelines. Thus, the current drug felony offense represents a long pattern of drug

trafficking. Gordon has failed repeated to comply with the law as well as with conditions

of probation and parole. Moreover, his past conduct indicates a high probability that he

will commit future crimes.

       Gordon submits “[t]hat the overriding principle and basic mandate of [18 U.S.C.] §

3553(a) require[] the [D]istrict [C]ourt to impose a sentence ‘sufficient, but not greater

than necessary,” to comply with the four purposes of sentence set forth in § 3553(a)(2).” 1

We agree. However, given Gordon’s criminal history and the District Court’s downward

adjustment from the advisory Guidelines range, we conclude that the imposition of a 210-

month sentence was sufficient, but not greater than necessary, to meet the considerations

of § 3553(a).

                                            III.




  1
   The four purposes of sentences are retribution, deterrence, incapacitation, and
rehabilitation. 18 U.S.C. § 3553(a)(2).

                                              4
       Gordon also asks us to rule that the District Court allowed improper opinion

testimony at trial in violation of Federal Rule of Evidence 704(b). Gordon, however,

neither raised this issue in the District Court nor in his initial appeal. It is well settled that

unasserted claims of error that could have been raised (and that a defendant had an

incentive to raise) in a first appeal may not be raised in a subsequent appeal following

remand. See, e.g., United States v. Pultrone, 241 F.3d 306, 307-08 (3d Cir. 2001). Thus,

we lack jurisdiction to consider Gordon’s claim that the District Court allowed improper

opinion evidence. Id. at 308.

                                            *****

       For these reasons, we affirm Gordon’s sentence.




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