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


3-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4523




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"USA v. Howard" (2008). 2008 Decisions. Paper 1438.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4523


                           UNITED STATES OF AMERICA,


                                             v.

                                  DAVID HOWARD,

                                                       Appellant



            On Appeal from the Judgment of the United States District Court
                        for the Eastern District of Pennsylvania
                              (Criminal No.06-cr-00065)
                       District Judge: Honorable Stewart Dalzell


                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 5, 2008

    Before: MCKEE, AMBRO, Circuit Judges, and IRENAS,* Senior District Judge.

                                 (Filed March 17, 2008)




________________________
      * Honorable Joseph E. Irenas, Senior United States District Judge for the District
of New Jersey, sitting by designation.



                                       OPINION
IRENAS, Senior United States District Judge.

       Appellant, David Howard, pled guilty to a one-count indictment charging

possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). He

was sentenced to 37 months’ imprisonment, the lowest end of the Sentencing Guideline

range of 37 to 46 months.1 Howard contends that the sentence imposed was unreasonable

because it violated the statutory mandate that the sentence be sufficient but not greater

than necessary (the “parsimony provision”), did not adequately reflect the history and

characteristics of the defendant, and relied too heavily on the need to avoid unwarranted

sentence disparities. 18 U.S.C. § 3553(a)(1)&(6).2 He does not challenge the calculation

of the Guideline range, nor does he challenge the District Court’s rejection of his request

for a downward departure under the Guidelines.



                                             I.

       We review the District Court’s sentencing decision for abuse of discretion. See


   1
      Howard’s base offense level of 20 was reduced by 3 for acceptance of
responsibility under U.S.S.G. 3E1.1(a)&(b), yielding a final offense level of 17. (App. 9,
72, 92-4). His criminal history category was IV. (Id). We have jurisdiction to review
Howard’s sentence under 18 U.S.C. § 3742.
   2
     18 U.S.C. § 3553(a) sets forth the “[f]actors to be considered in imposing a
sentence”. Subsections (1) and (6) require the court to consider: “the nature and
circumstances of the offense and the history and characteristics of the defendant” and “the
need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.”
                                             2
Gall v. United States, 128 S. Ct. 586, 597-98 (2007). This review is limited to

determining whether the sentence imposed was “reasonable.” Id. at 594; United States v.

Booker,543 U.S. 220, 125 S. Ct. 738, 764-67 (2005), United States v. Cooper, 437 F.3d

324, 327 (3d Cir. 2006). We consider the relevant § 3553(a) factors to decide “whether

the district judge imposed the sentence he or she did for reasons that are logical and

consistent with the [these] factors[.]” Cooper, 437 F.3d at 330 (quoting United States v.

Williams, 425 F.3d 478, 481 (7th Cir. 2005)). A within-Guidelines sentence may be (but

is not necessarily) presumed reasonable by this Court. See Rita v. United States, 127 S.

Ct. 2456, 2462 (2007); Gall, 128 S. Ct. 586, 597. Appellant bears the burden of proving

the unreasonableness of a sentence. Cooper, 437 F.3d at 332.



                                             II.

       Howard contends that his significant rehabilitation efforts during his seven month

period of home detention pending sentencing render the District Court’s imposition of a

37 month sentence unreasonable. Despite a lifelong dependency on alcohol, he became

completely drug and alcohol free over this time, and was able to hold a steady job.

       The District Court, however, considered his rehabilitation efforts. After properly

calculating the Guideline range, it expressed agreement with the government that the

offense was serious, given that Howard was intoxicated and carrying a gun. (App. 92-

93). It also agreed with defense counsel that Howard had taken “positive steps” since the

inception of the prosecution and home detention. (Id.). The District Court noted that it

                                             3
was “particularly impressed” with a letter from Howard’s co-worker attesting to the

quality of his work and by his increasing level of maturity. (App. 66, 93).

       Ultimately, however, the Court concluded that Howard’s rehabilitation efforts

were “significant” but not “unusual,” and that a sentence at the bottom end of the

Guideline range was in accordance with the parsimony provision, and avoided

unwarranted sentencing disparities. (App. 93-94). The reasons given by the District

Court in imposing a 37 month sentence are logical and consistent with the relevant §

3553(a) factors. Howard has not met his burden of demonstrating that the sentence

imposed was unreasonable.



                                            III.

       For the reasons set forth above, the judgment of the Eastern District of

Pennsylvania will be affirmed.




                                             4
