                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-2009

USA v. Jose Brito
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1527




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Recommended Citation
"USA v. Jose Brito" (2009). 2009 Decisions. Paper 1134.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1134


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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 08-1527
                                 ____________

                       UNITED STATES OF AMERICA

                                       v.

                                 JOSE BRITO,

                                         Appellant.

                                 ____________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                              (D.C. No. 00-cr-00635)
                 District Judge: Honorable Ronald L. Buckwalter
                                  ____________

                   Submitted Under Third Circuit LAR 34.1(a)
                                June 12, 2009

      Before: McKEE, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

                             (Filed: June 25, 2009)
                                 ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       José Brito appeals his sentence for the third time. We will affirm.

                                             I.

       Because we write exclusively for the parties, we recount only those facts necessary

to our disposition.

       Brito pleaded guilty to ten counts arising from his involvement in illegal drug

trafficking activity. On October 24, 2003, the District Court sentenced Brito to 235

months imprisonment, which was at the bottom of the 235 to 293 months Guidelines

range. On March 25, 2005, we remanded Brito’s case for resentencing pursuant to United

States v. Booker, 543 U.S. 220 (2005). Although Brito’s Guidelines imprisonment range

remained 235 to 293 months, the District Court granted Brito a substantial downward

variance to 140 months based on its finding that the 100-to-1 crack/powder cocaine

disparity was too harsh. Brito and the Government appealed that sentence.

       On August 17, 2007, we vacated the 140-month sentence and remanded the case

for resentencing because the District Court erred under then-prevailing precedent in

categorically rejecting the 100-to-1 crack/powder disparity. Upon remand, Brito sought

the statutory mandatory minimum of 120 months imprisonment in light of the District

Court’s previous variance, the inherent unfairness of the crack/powder disparity, and his

good conduct while in jail. The Government argued for a sentence falling within the

Guidelines range.




                                             2
       In November 2007, prior to Brito’s resentencing hearing, the Sentencing

Commission issued Amendment 706, which lowered the base offense level for most crack

offenses by two levels and resulted in a new Guidelines range of 188 to 235 months in

Brito’s case. A month later, the Supreme Court issued Kimbrough v. United States, 128

S. Ct. 558 (2007), which held that a district court may consider the Guidelines’

crack/powder disparity in determining an appropriate sentence.

       At the resentencing on February 13, 2008, the District Court explained that its

previous sentence was not the result of a categorical rejection of the crack/powder

disparity, but rather, the result of careful consideration of the § 3553(a) sentencing factors

as required by Booker. The District Court exercised its discretion under Kimbrough and

reinstated the 140-month sentence, finding that the sentence it had previously imposed

remained just and proper under Booker and Kimbrough.

                                              II.

       Brito argues that the District Court abused its discretion by imposing the same

sentence it had imposed prior to Kimbrough and Amendment 706. After applying the

two-level reduction as required by Amendment 706, Brito claims the District Court

should have reduced his sentence from 140 months to the statutory mandatory minimum

of 120 months.

       We review the District Court’s sentence under the deferential abuse of discretion

standard. Gall v. United States, 128 S. Ct. 586, 594 (2007). Our review of the record



                                              3
demonstrates that the District Court took pains to explain that its initial 140-month

sentence — a sentence that falls below the Guidelines range — was reasonable and

appropriate in light of the § 3553(a) factors, Kimbrough and Amendment 706. In

resentencing Brito to 140 months imprisonment, the District Court weighed Brito’s

personal characteristics, including his age and lack of a prior criminal record, as well as

the serious nature of the offense. The District Court then considered the sentencing

disparities between crack and powder cocaine, and acknowledged the two-level reduction

in the Guidelines calculation pursuant to Amendment 706. Accordingly, we hold that the

District Court did not abuse its discretion in imposing the same 140-month sentence.

                                              III.

       Brito next argues that the crack cocaine mandatory minimum sentence and

Guidelines range deprive him of due process under the Fifth Amendment. We review this

argument for plain error because it was not raised previously. United States v. Olano, 507

U.S. 725, 734-45 (1993).

       This Court has consistently found that there is a rational basis for the crack/powder

disparity, and that it does not violate substantive rights. See, e.g., United States v.

Frazier, 981 F.2d 92, 96 (3d Cir. 1992). Since this was the case before Booker and

Kimbrough, it is ever more so now that district courts may take into account the disparity

in calculating a sentence, and grant a variance where appropriate. Accordingly, we




                                               4
summarily reject Brito’s Fifth Amendment challenge and will affirm the judgment of the

District Court.




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