                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-29-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1364




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"USA v. Burns" (2007). 2007 Decisions. Paper 178.
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                                                           NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 06-1364


                      UNITED STATES OF AMERICA

                                      v.

                             CLINTON BURNS,
                                a/k/a Clizz

                                                 Clinton Burns,
                                                           Appellant


                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                        D.C. Criminal No. 04-cr-0405-2
                      (Honorable William W. Caldwell)


                          Argued November 7, 2007
      Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.

                         (Filed: November 29, 2007)

PHILIP GELSO, ESQUIRE (ARGUED)
120 South Franklin Street
Wilkes-Barre, Pennsylvania 18701
      Attorney for Appellant

WILLIAM A. BEHE, ESQUIRE (ARGUED)
Office of United States Attorney
220 Federal Building and Courthouse
228 Walnut Street, P.O. Box 11754
Harrisburg, Pennsylvania 17108
       Attorney for Appellee
                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Clinton Burns was one of 23 defendants charged in a drug conspiracy indictment.

Burns pled guilty to unlawful distribution and possession with intent to distribute crack

cocaine. 21 U.S.C. § 841(a)(1). The District Court imposed the 20-year maximum

penalty. 21 U.S.C § 841(b)(1)(C). He appeals his sentence. We will affirm.

                                             I.

       Burns appeals on four grounds. First, he argues the District Court disregarded

United States v. Booker, 543 U.S. 220 (2005), and applied the sentencing guidelines as

mandatory. He points to an exchange at the sentencing hearing in which the court said

Booker was inapplicable. But the court was addressing an Apprendi argument, Apprendi

v. New Jersey, 530 U.S. 466 (2000), namely whether it could consider for sentencing

purposes information not found beyond a reasonable doubt. In context, nothing in the

court’s statement suggested it was disregarding Booker when applying the sentencing

guidelines. Nor does the record suggest the court treated the sentencing guidelines as

mandatory. We see no error.

       Second, Burns argues, by only considering his criminal history and the guidelines

calculation, the court created a presumptively reasonable range of sentences and failed to

consider other factors under 18 U.S.C. § 3553(a). Nothing in the record suggests the

District Court considered the range of sentences presumptively reasonable. While a court

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must give “meaningful consideration” to the 3553(a) factors, it need not “discuss and

make findings of each of the 3553(a) factors if the record makes clear the court took the

factors into account in sentencing.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir.

2006). The District Court did not address every factor, but it addressed all the relevant

facts and the relevant 3553(a) factors in responding to both government counsel’s and

Burns’s counsel’s arguments. The court “considered the parties’ arguments and ha[d] a

reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United

States, 127 S.Ct 2456, 2468 (2007). We see no error.

          Third, Burns argues his sentence was unreasonable because the court failed to

adequately articulate its consideration of 18 U.S.C. § 3553(a) factors and to provide

sufficient reasons; therefore it did not impose a “sentence sufficient, but not greater than

necessary, to comply with” the statute. 18 U.S.C. § 3553(a). A sentence is unreasonable

if “the trial court abused its discretion.” Rita, 127 S.Ct at 2465. Burns bears the burden

of demonstrating unreasonableness. Cooper, 437 F.3d at 329. As discussed above, the

District Court adequately addressed all the relevant 3553(a) factors.

          Fourth, Burns contends the court should have granted a downward departure under

U.S.S.G. 4A1.3(b) because his criminal history did not warrant career criminal status.

But the District Court addressed Burns’s criminal history and reasonably declined to

depart.

                                              II.



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      Accordingly, the sentence was not unreasonable and we will affirm the judgment

of sentence imposed by the District Court.




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