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


12-18-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2938




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                                                 NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                      ___________

                      No. 05-2938
                      ___________


           UNITED STATES OF AMERICA

                           vs.

          KASAN SANDERS a/k/a Kasan Cox

                     Kasan Sanders,

                        Appellant

                       _________

     On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
              (D.C. Criminal No. 04-cr-00516)
     District Judge: The Honorable Harvey Bartle, III
                        __________

       Submitted Under Third Circuit LAR 34.1(a)
                   October 4, 2006

BEFORE: McKEE, AMBRO, and NYGAARD, Circuit Judges.

               (Filed December 18, 2006)
                      ___________

               OPINION OF THE COURT
                    ___________
NYGAARD, Circuit Judge.

       Nicole Bowman called Philadelphia police and reported a domestic disturbance

involving her ex-boyfriend “Michael.” Philadelphia Police Officer Carlos Nieves and his

partner responded and arrived at Bowman’s residence at 1319 North 11th Street in North

Philadelphia. Bowman told Nieves that Michael, carrying a gun and wearing a jeff cap

and all-white clothing, had just walked southbound toward the intersection of 11th Street

and Girard Avenue. As Nieves left Bowman’s apartment, other police officers arrived

and told him they’d just spotted a man fitting Bowman’s description on the corner of

11th and Girard.

       The man the officers saw was appellant Kasan Sanders. When Nieves arrived at

11th and Girard, he stopped Sanders and conducted a Terry frisk. Terry v. Ohio, 392 U.S.

1 (1967). Nieves discovered a loaded .38 caliber revolver tucked inside Sanders’

waistband and arrested him. A federal grand jury indicted Sanders and charged him with

one count of violating 18 U.S.C. §922(g) as a felon in possession of a firearm.

       Sanders filed a motion to suppress the revolver and ammunition, contending

Nieves lacked reasonable suspicion to frisk him. Subsequently, Sanders and the

government reached an agreement pursuant to which Sanders admitted the factual

elements of the indictment and agreed to a stipulated trial should his motion to suppress

be denied. The government in turn agreed Sanders would be entitled to at least a two

point adjustment for acceptance of responsibility upon sentencing.



                                             2
       At the suppression hearing, the government presented Officer Nieves to testify.

Sanders presented five witnesses and documentary evidence to impeach Nieves’

testimony. The district court denied Sanders’ motion and admitted the revolver and

ammunition into evidence. Sanders waived his right to trial by jury and the court

conducted a short, stipulated bench trial that afternoon. Sanders was found guilty as

charged.

       At sentencing, the parties clashed over whether Sanders deserved a three-point

adjustment for his acceptance of responsibility for the crime under U.S. Sentencing

Guidelines §3E1.1(b). The government agreed to a two point reduction under §3E1.1(a),

but refused to move for a third point under §3E1.1(b). Sanders contended he deserved the

third point because he had admitted his guilt from the start of the proceedings. The court

reduced Sanders’ offense level by two points, but declined to reduce it by a third point

because, the court explained, “the Government has not filed a motion permitting me to

depart downward the additional point....” The court sentenced Sanders to 63 months in

prison, to be reduced to 56 months should the Bureau of Prisons choose not to credit him

for time served.




                                            II.

                                            A.



                                             3
       On appeal, Sanders contends the government vindictively refused to move for a

§3E1.1(b) departure and that the district court erred when it concluded it could not order

the departure absent a government motion. §3E1.1 provides:

       a) If the defendant clearly demonstrates acceptance of responsibility for his
       offense, decrease the offense level by 2 levels.
       b) If the defendant qualifies for a decrease under subsection (a), the offense
       level determined prior to the operation of subsection (a) is level 16 or
       greater, and upon motion of the government stating that the defendant has
       assisted authorities in the investigation or prosecution of his own
       misconduct by timely notifying authorities of his intention to enter a plea of
       guilty, thereby permitting the government to avoid preparing for trial and
       permitting the government and the court to allocate their resources
       efficiently, decrease the offense level by 1 additional level. U.S.
       SENTENCING GUIDELINES MANUAL §3E1.1(a-b)(2006).

       In relevant part, the Commentary to §3E1.1(b) states:

       Because the Government is in the best position to determine whether the
       defendant has assisted authorities in a manner that avoids preparing for
       trial, an adjustment under subsection (b) may only be granted upon a formal
       motion by the Government at the time of sentencing. U.S. SENTENCING
       GUIDELINES MANUAL §3E1.1(b) & cmt. n.6 (2006)(citing the PROTECT
       Act of 2003 §401(g), Pub. L. No. 108-21, 117 STAT. 671-72).

       Despite the government’s broad discretion under this provision, district courts

have the power to review a prosecutor’s refusal to move for a downward departure and to

grant a remedy if they find the refusal a) was based on an unconstitutional motive, such as

race or religion, or b) lacked a rational relationship to any legitimate government

objective. United States v. Wade, 504 U.S. 181, 185-186 (1992); United States v.

Abuhouran, 161 F.3d 206, 212 (3d Cir. 1998). However, in recognition of the

government’s prerogative, the scope of a district court’s review here is “extremely


                                             4
limited” absent a plea agreement. United States v. Isaac, 141 F.3d 477, 481 (3d Cir.

1998).

         The government may violate due process if it refuses to move for a departure

vindictively. United States v. Paramo, 998 F.2d 1212, 1219 (3d Cir. 1993), cert. denied,

510 U.S. 1121 (1994). Sanders carries the burden of proving prosecutorial vindictiveness,

by adducing evidence of actual vindictiveness or evidence which generates a

presumption of vindictiveness. Paramo, 998 F.2d at 1220 (internal citations omitted).

         Sanders’ Paramo claim lacks merit entirely. Well before the suppression hearing,

the Government maintained it would not move for a §3E1.1(b) departure if Sanders

sought suppression. In Paramo, we recognized a prosecutor does not violate due process

when he threatens serious charges to induce a guilty plea and then carries out that threat

after the defendant refuses to cooperate. Paramo, 998 F.2d at 1221 (citing Bordenkircher

v. Hayes, 434 U.S. 357, 363-65 (1978)). Similarly, the Government’s threat to refuse a

§3E1.1(b) departure, and its adherence to that threat, are “inevitable and permissible”

attributes of a judicial system “which tolerates and encourages the negotiation of pleas.”

Id. (quoting Bordenkircher, 434 U.S. at 364).

         Sanders allowed the government to avoid voir dire, jury instructions and jury

selection, but he forced the government to litigate the essential element of a §922(g)(1)

offense – Sanders’ possession of a firearm – and his only arguable defense. In doing so,

Sanders compelled the government to prepare and examine Officer Nieves and to cross-



                                              5
examine five defense witnesses. As a result, the government essentially tried Sanders at

the suppression hearing. United States v. Rogers, 129 F.3d 76 (2d Cir. 1997)(per curiam).

The government reasonably concluded Sanders did not permit it or the court “to allocate

their resources efficiently.” U.S. SENTENCING GUIDELINES MANUAL §3E1.1(b) (2006).

                                            B.

       Sanders argues his sentence is unreasonable because the district court refused to

grant a variance comparable to §3E1.1(b) and failed to adequately explain the rationale

behind his sentence.

       District judges now must follow a three-step analysis in sentencing criminal

defendants. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). The district judge

must 1) continue to calculate a defendant’s Guidelines sentence precisely as he would

have before United States v. Booker; 2) formally rule on the parties’ motions, stating on

the record whether he is granting a departure and how that departure affects the

Guidelines calculation; and 3) exercise his discretion by considering the relevant

§3553(a) factors. Gunter, 462 F.3d at 247. At step three, the sentencing record should

demonstrate the judge considered the §3553(a) factors and any sentencing grounds

properly raised by the parties which have recognized legal merit and factual support in

the record. Cooper, 437 F.3d at 332. However, the judge need not discuss every

argument made by a litigant if an argument is clearly without merit. Cooper, 437 F.3d at

329.



                                             6
         We conclude the district court followed the proper analysis and that Sanders’

sentence is reasonable. The court carefully calculated Sanders’ Guidelines sentence and

formally ruled on the parties’ motions with respect to Guidelines departures. At Gunter

step three, it acknowledged the Guidelines are advisory, stated the relevant §3553(a)

factors and considered the totality of the circumstances. Importantly, the court considered

Sanders’ personal circumstances when it chose not to impose a fine and reduced Sanders’

sentence to credit him for time served because the Bureau of Prisons did not intend to do

so. Appendix at 226; see United States v. Charles, -- F.3d -- , 2006 WL3231396 (3d Cir.

2006).

         Although the district court did not expressly rule on Sanders’ request for a

variance, we can infer it concluded Sanders’ claim lacked merit. Indeed, Sanders

provided no evidence to suggest he was entitled to a variance comparable to the

§3E1.1(b) departure.




                                             III.




                                               7
       The district court properly calculated Sanders’ Guidelines sentence, expressly

ruled on the parties’ respective departure motions and exercised its discretion prudently.

We will affirm Sanders’ sentence.




                                             8
