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


12-3-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4980




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Recommended Citation
"USA v. Hayes" (2007). 2007 Decisions. Paper 144.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/144


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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No: 06-4980
                                    _______________

                           UNITED STATES OF AMERICA

                                             v.

                              DEDRIC DYSHON HAYES
                                   a/k/a Dereke

                               DEDRIC DYSHON HAYES,
                                          Appellant
                                  _______________

                           Appeal from United District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 03-cr-00062)
                           District Judge: Hon. Yvette Kane
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 8, 2007

               Before: SCIRICA, AMBRO and JORDAN, Circuit Judges

                                (Filed December 3, 2007)
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

      Dedric Hayes pleaded guilty to a Superseding Information charging him with the

unlawful distribution of an undetermined quantity of crack cocaine, in violation of 21
U.S.C. § 841. The District Court imposed a sentence of 176 months imprisonment. We

vacated the sentence and remanded for re-sentencing in accordance with United States v.

Booker, 125 S. Ct. 738 (2005). On remand, the District Court imposed the same sentence,

and Hayes appeals.

       Hayes raises three arguments on appeal. First, he argues that the sentence imposed

by the District Court was unreasonable. Second, Hayes argues that the District Court

failed to adequately consider the crack cocaine to powder cocaine sentencing disparity.

Finally, Hayes argues that the District Court erred by rejecting his objection to the drug

amount calculation without an evidentiary hearing. For the reasons that follow, we will

affirm the District Court’s judgment of sentence.

                                             I.

       Hayes pleaded guilty, pursuant to a negotiated plea agreement, to a Superseding

Information charging him with the unlawful distribution of an undetermined quantity of

crack cocaine. The practical effect of pleading to distribution of an undetermined

quantity was to limit Hayes’s exposure to a maximum sentence of 20 years, pursuant to 21

U.S.C. § 841(b)(1)(C), rather than a maximum sentence of life imprisonment and a

mandatory minimum sentence of 10 years, pursuant to 21 U.S.C. § 841(b)(1)(A).

       The Presentence Investigation Report (“PSR”) calculated the quantity of drugs for

which Hayes was responsible to be approximately 683 grams of crack cocaine, which was




                                             2
based on witness estimates of the quantity of crack cocaine sold by Hayes. Hayes

objected to the drug amount calculation but withdrew his objection prior to sentencing.

       Because Hayes cooperated with government agents by giving them information

regarding, inter alia, Hassan Thomas’s crack cocaine distribution, the government moved

for a 25% downward departure for substantial assistance, pursuant to U.S.S.G. § 5K1.1.

The District Court granted the government’s motion and imposed a sentence of 176

months, which reflected a 25% reduction from the low end of the guideline imprisonment

range of 235-240 months. Hayes appealed his sentence, and we vacated and remanded

the matter to the District Court for re-sentencing in light of Booker.

       Prior to re-sentencing, the government filed a motion seeking leave to withdraw its

previous request for a guideline departure pursuant to U.S.S.G. § 5K1.1, because two

months after Hayes was sentenced, he testified at Thomas’s sentencing hearing that he

had lied to government agents about Thomas being involved in crack cocaine distribution.

Also prior to re-sentencing, Hayes filed an objection to the drug amount calculation that

was originally used to establish his guideline offense level, and asked the Court to depart

from the guideline range based upon the disparity between the guidelines for crack

cocaine and powder cocaine.

                                             II.

       Hayes first argues that the District Court’s sentence was unreasonable because the

Court failed to consider that he (1) is only twenty-five years old; (2) committed no acts of


                                              3
violence during any of his drug transactions; (3) has made “positive efforts” in prison;

and (4) should be involved in his son’s life. The government responds that the Court

considered the relevant § 3553(a) factors prior to imposing the sentence.1

       The District Court stated the following prior to imposing the sentence:

      Alright. Counsel, I have struggled with this case. I think the guidelines
      are very high, but I think that Mr. Hayes has been given all due
      consideration in the government’s motion for downward departure. I
      think if the government had it their way of course there would not be a
      motion for downward departure on the record at this point, but I find
      that there is. At the time when we were here last time, I believe I
      commented that I thought 25% was a substantial reduction, given the
      level of the defendant’s cooperation. I think if I revisit that issue I
      would feel even more certain that that were the case, but I’m not going
      to revisit that issue. I think it’s appropriate as I’ve indicated before. So
      really I think based on all of the circumstances, the defendant’s
      background, his criminal conduct, his level of involvement in this as
      compared to the other defendants, I think the original sentence of 176
      months was a reasonable one and that is what I will impose now.
(App. 125-26.)

Even though the District Court did not explicitly state that it had considered all of the

relevant § 3553(a) factors, the Court specifically noted that it had considered “all of the

circumstances” prior to imposing the sentence, and it appears from the history of the case

that the Court did. We therefore find that the District Court did not abuse its discretion

and the sentence imposed was reasonable.




  1
   The government also argues that we do not have jurisdiction to hear Hayes’s challenge
because the sentence of 176 months was imposed as the result of a departure granted
pursuant to a 5K1.1 motion for reduction. We are not persuaded by this argument.

                                              4
                                             III.

       Next, Hayes argues that the District Court failed to adequately consider the crack

cocaine to powder cocaine sentencing disparity. The record is clear, however, that the

Court acknowledged that it had the authority to consider the disparity, but nevertheless

chose not to reduce Hayes’s sentence. Specifically, the Court stated that it was “entitled”

to consider the disparity “as a 3553(a) factor...but I don’t find under the circumstances

here that it warrants a reduction from the guideline range....” (App. at 133-34.)

                                            IV.

       Finally, Hayes argues that the District Court erred by rejecting his objection to the

drug amount calculation without conducting an evidentiary hearing. Hayes’s position is

that the remand of this case for re-sentencing in light of Booker “opened up the ability for

the sentencing court to consider Hayes’s calculation of drug amounts.” (Appellant’s Br. at

18.) The District Court believed that determining the drug amount on remand was outside

the scope of this Court’s mandate for re-sentencing, and ruled that it would not hear

evidence of drug quantities during the re-sentencing hearing.

       Hayes withdrew his objection to the government’s drug amount calculation prior to

his first sentencing hearing, and he cannot now be heard to challenge that calculation.

When we vacated and remanded for re-sentencing, we did so in light of Booker, not on

the basis of an error in the drug amount calculation. Therefore, the District Court did not

err by refusing to allow Hayes to reinstate his objection to the drug amount calculation.


                                              5
                                    V.

For the foregoing reasons, the judgment of sentence will be affirmed.




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