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


1-24-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3864




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"USA v. Pitts" (2008). 2008 Decisions. Paper 1711.
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                                                                   NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                       NO. 06-3864


                            UNITED STATES OF AMERICA

                                             v.

                                   ROBERT L. PITTS
                                      Appellant




                           On Appeal From the United States
                                       District Court
                         For the Middle District of Pennsylvania
                         (D.C. Crim. Action No. 05-cr-00415-1)
                        District Judge: Hon. William W. Caldwell


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 11, 2007

                       BEFORE: RENDELL and STAPLETON,
                      Circuit Judges, and IRENAS, District Judge*

                            (Opinion Filed: January 24, 2008)




*Hon. Joseph E. Irenas, Senior District Judge for the District of New Jersey, sitting by
designation.
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Appellant Robert Pitts was arrested after he tried to buy five kilograms of cocaine

from an undercover officer. He subsequently pled guilty pursuant to a plea agreement.

                                             I.

       Because we write only for the parties who are familiar with the factual context and

procedural history of the case, we set forth only those facts necessary to our analysis.

       Prior to the sentencing hearing, the government informed Pitts that a § 5K1.1

motion would not be forthcoming because Pitts had lied about who funded the drug ring

that he was involved with, who his partners were, and about the fact that he had sold

crack cocaine. Because the government refused to make the motion, the District Court

refused to grant the downward departure.

       In addition to the departure, Pitts also sought a variance based on his troubled past,

remorse for his crime, subsequent cooperation with the government, and standing in the

community. Opposing this request, the government explained that Pitts had not fully

cooperated as required by his plea agreement and detailed his extensive criminal history.

After considering all of this information, the District Court concluded that it could not

“justify departing from the Guidelines.” Instead, it sentenced Pitts to the minimum

                                              2
sentence within the Guidelines range, 151 months in prison.

       Pitts appeals, alleging that the government acted in bad faith when it refused to file

a motion for departure pursuant to § 5K1.1. He further argues that the District Court

erred in refusing to grant a variance, claiming that it incorrectly viewed the Guidelines

regime as mandatory in the absence of extraordinary circumstances. Finally, he asserts

that the government’s remarks at his sentencing hearing were so inflammatory that they

prevented the District Court from engaging in any meaningful consideration of the

relevant U.S.S.G. § 3553(a) factors.1

                                             II.

       Although we find no error in the District Court’s refusal to grant a departure

pursuant to U.S.S.G. § 5K1.1 and no plain error based on the government’s comments,2

   1
    We have jurisdiction over sentencing appeals pursuant 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), and review the ultimate sentence imposed by the District Court for
reasonableness. United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). We review
the District Court’s legal conclusions without deference and its factual findings for clear
error. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2006) (en banc); United States v.
Lloyd, 469 F.3d 319, 321 (3d Cir. 2006).


   2
    Concerning the departure, because the government offered a legitimate reason for its
actions, Pitts had to adduce some evidence showing that the government was acting in
bad faith. United States v. Isaac, 141 F.3d 477, 484 (3d Cir. 1998). The record shows
that he did not offer any such evidence, and accordingly, Pitts was not entitled to the
departure. The record also belies Pitts’ prosecutorial misconduct claims. Although the
government did misspeak at one point, telling the District Court that Pitts’ earlier cocaine
conviction carried a mandatory minimum sentence, this was a minor error that had no
bearing on Pitts’ ultimate sentence, and therefore it simply did not affect his substantial
rights. See United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006). We are similarly
unpersuaded by Pitts’ alternative argument that, when the government responded to his

                                             3
we will vacate Pitts’ sentence and remand for resentencing because the record suggests

that the District Court misapprehended its role under the current Guidelines regime.

Specifically, when the District Judge indicated that his “obligation as [a] judicial

officer[]” was to follow the Guidelines absent “some extraordinary situation,” it raised

doubt as to what role the Guidelines played in formulating Pitts’ sentence.

       Although our post-Booker precedent makes it clear that the Guidelines are not to

be taken lightly, a district court can properly deviate from the prescribed range even in the

absence of extraordinary circumstances. Gall v. United States, 128 S.Ct. 586, 594-95

(2007); United States v. Booker, 543 U.S. 220 (2005); Cooper, 437 F.3d at 331 & n. 10.

Accordingly, because the record suggests that the District Court may have been laboring

under the mistaken belief that the Guidelines are not to be deviated from absent such

circumstances, we cannot affirm the District Court’s sentencing determination. United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).

                                             III.

       For this reason, the judgment of the District Court will be vacated and the matter

will be remanded for resentencing.




departure request by stating that he lied when he denied selling cocaine, it so inflamed the
District Court that it was unable to give meaningful consideration to the U.S.S.G. §
3553(a) factors. Nothing in the record suggests that this statement by the government was
inaccurate or that it had any inappropriate effect on the District Court’s ultimate decision.

                                              4
