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


3-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1349




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Dair" (2006). 2006 Decisions. Paper 1424.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1424


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 05-1349


                               USA

                                v.
                          JOHN DAIR,
                              a/k/a
                               JB,
                              a/k/a
                          JOHN BOYD,
                              a/k/a
                           JOHN BOY

                             John Dair,
                               Appellant




          On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                     (D.C. No. 02-cr-00172-12)
           District Judge: The Honorable Stewart Dalzell



            Submitted Under Third Circuit LAR 34.1(a)
                         March 2, 2006

    Before: SLOVITER and FUENTES, Circuit Judges and
                   RESTANI*, Judge.



      *
         Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
                                  (Filed: March 15, 2006)

                                  OPINION OF THE COURT



FUENTES, Circuit Judge.

       This is a sentencing appeal following a plea of guilty. Appellant John Dair

challenges his 325-month sentence imposed based upon the role he played in a large drug

conspiracy. Specifically, he alleges that the District Court erred in making certain

findings of fact at sentencing, that his sentence is unreasonable in light of United States v.

Booker, 543 U.S. 220 (2005), and that the District Court abused its discretion at

sentencing by denying a motion to re-weigh the amount of crack cocaine seized. For the

reasons stated herein we reject all three of these claims and affirm the sentence imposed

by the District Court.

I.     Background

       Because we write only for the parties, we offer only a cursory outline of the facts.

Dair was charged in connection with his participation in the Courtney Carter Narcotics

Organization, which was responsible for drug trafficking and related activity in a number

of locations, including Philadelphia, Western Pennsylvania and Delaware. All told thirty-

seven individuals were charged in this conspiracy, which spanned from 1997 through

2002 and distributed approximately 400 kilograms of cocaine base and 600 kilograms of

cocaine over that period.

       Dair was a member of the conspiracy between 1997 and 1999, during which time

                                              2
he sold cocaine and worked as a driver. As a result, he was charged with conspiracy to

distribute more than 50 grams of cocaine base and more than five kilograms of cocaine in

violation of 21 U.S.C. § 846, distribution of 50 grams or more of cocaine base in violation

of 21 U.S.C. § 841, and distribution of 50 grams or more of cocaine base within 1000 feet

of a school in violation of 21 U.S.C. § 860. The day of his trial, Dair pled guilty to all

three charges. Pending sentencing, the terms of Dair’s pre-trial release were continued,

and he remained free on bail. Before Dair could be sentenced, however, he sold crack to

an undercover agent, which resulted in the revocation of his pre-sentence release.

       The pre-sentence report recommended a total offense level of 37 and a criminal

history category of III, yielding a Sentencing Guidelines range of 262-327 months. The

report’s offense level of 37 arose in part from a 2-level downward departure based upon

Dair’s Acceptance of Responsibility. In light of Dair’s pre-sentencing crack sale,

however, the District Court declined to grant the recommended 2-level departure and

sentenced Dair at offense level 39. At this level, Dair’s criminal history category

remained at III, but the applicable Guidelines range increased to 324-405 months. In a

post-Booker proceeding, the District Court sentenced Dair to 325 months in prison, near

the bottom of this range. This challenge to the District Court’s sentence followed.

II.    Discussion

       A.     District Court’s Findings of Fact

       Dair first claims that the District Court erred in its findings of fact, specifically as

to the amount of drugs it attributed to him. Notwithstanding his pleading guilty to being a

                                               3
member of the conspiracy, Dair argues that he was never responsible for the large sum of

drugs that informed his sentence, namely 150 kilograms of cocaine and 1.5 kilograms of

cocaine base. We review the District Court’s findings of fact under the clear error

standard. United States v. Butch, 256 F.3d 171, 177 (3d Cir. 2001). Under that standard,

Dair’s claim must fail.

       Dair pled guilty under 21 U.S.C. § 846, which reads, “[a]ny person who attempts

or conspires to commit any offense defined in this subchapter shall be subject to the same

penalties as those prescribed for the offense, the commission of which was the object of

the attempt or conspiracy.” Thus, Dair’s pleading to membership in the conspiracy

subjects him to penalties based upon not just the quantity of drugs he handled, but the

quantity handled by the entire conspiracy. As detailed in Dair’s pre-sentence report, the

conspiracy handled approximately 600 kilograms of cocaine and 400 kilograms of

cocaine base, far in excess of the 150 and 1.5 kilograms of these drugs, respectively,

underlying Dair’s Guidelines range.

       Moreover, the District Court was well aware of the extent of this conspiracy, as he

conducted all of the trials relating to the conspiracy and presided over these cases for a

total of eighty-five trial days. In our view, it was not improper for the District Court to

employ the knowledge it had gleaned from the other conspiracy-related proceedings in

order to determine its scale. See United States v. Reynoso, 254 F.3d 467, 474 (3d Cir.

2001) (noting that a sentencing court may rely on evidence from another proceeding so

long as it makes available to counsel transcripts from the relevant proceedings and

                                              4
provides enough time for counsel to examine them). Deferring to the District Court as we

must, we see no clear error in its determination of the amounts of cocaine and cocaine

base the conspiracy controlled, for purposes of Dair’s sentencing.

       B.     Unreasonableness in Light of Booker

       As mentioned above, the District Court sentenced Dair after Booker. Dair claims

that in light of that case, his sentence of 325 months was unreasonable. We recently

established our test for the reasonableness of a post-Booker sentence in United States v.

Cooper, 437 F.3d 324 (3d Cir. 2006). To determine the reasonableness of a sentence, “we

must first be satisfied the court exercised its discretion by considering the relevant

factors.” Id. at 329. Pursuant to 18 U.S.C. § 3553(a), the relevant factors are:

              (1) the nature and circumstances of the offense and the history and
                  characteristics of the defendant;
              (2) the need for the sentence imposed--
                  (A) to reflect the seriousness of the offense, to promote respect for the
                       law, and to provide just punishment for the offense;
                  (B) to afford adequate deterrence to criminal conduct;
                  (C) to protect the public from further crimes of the defendant; and
                  (D) to provide the defendant with needed educational or vocational
                       training, medical care, or other correctional treatment in the most
                       effective manner;
              (3) the kinds of sentences available;
              (4) the kinds of sentence and the sentencing range established for . . . the
                  applicable category of offense committed by the applicable category of
                  defendant as set forth in the guidelines . . . .

Id. In addition to the factors listed in Cooper, § 3553(a) also requires that courts consider

“the need to avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Though the


                                              5
“record must demonstrate the trial court gave meaningful consideration to the § 3553(a)

factors,” it need not “discuss and make findings as to each of the § 3553(a) factors if the

record makes clear the court took the factors into account in sentencing.” Cooper, 437 F.3d

at 329. Guided by our holding in Cooper and in light of the deference we owe the District

Court, we are satisfied that Dair’s sentence was not unreasonable.

       In its analysis of the § 3553(a) factors, the District Court conducted an extensive

colloquy during which it addressed specifically the justice of the sentence, its deterrent effect

and protection of society. The District Court also factored in the characteristics of the

defendant, noting Dair’s remorsefulness and family responsibilities before sentencing him.

Finally, as discussed above, the District Court calculated Dair’s Guidelines range, pursuant

to its statutory obligation. In short, the District Court fulfilled its duty under Cooper to give

due consideration to the relevant § 3553(a) factors.

       Our inquiry does not end there, however. In addition to ensuring that the District

Court considered the § 3553(a) factors, “we must also ascertain whether those factors were

reasonably applied to the circumstances of the case. In doing so, we apply a deferential

standard, the trial court being in the best position to determine the appropriate sentence in

light of the particular circumstances of the case.” Id. at 330. We are particularly satisfied

that the trial judge here is in the best position to determine Dair’s sentence, as he is the judge

most familiar with the intricacies of the Courtney Carter Narcotics Organization. Based on

these additional considerations, we remain satisfied with the reasonableness of Dair’s

sentence.

                                                6
       C.     Denial of the Motion to Re-weigh

       Dair finally asserts that the District Court’s denial of his motion to re-weigh the drugs

recovered from a sale he made in 1998 was improper. The denial of a motion to re-weigh

is subject to the abuse of discretion standard. United States v. Orozco-Rodriguez, 60 F.3d

705, 707 (10th Cir. 1995). The drugs in question served as the basis for the distribution of

cocaine base and distribution of cocaine base within 1000 feet of a school counts to which

Dair pled guilty. It is undisputed that Dair committed both of these acts. Though Dair

disputes the amount of cocaine base he sold in 1998–and though Dair’s counsel reserved the

right to have its weight recalculated prior to Dair’s plea–the actual weight played no role in

his ultimate sentence. This is because, in calculating his Guidelines range, the pre-sentence

report incorporated the distribution and distribution within 1000 feet of a school counts into

the conspiracy count to which Dair pled guilty. Pre-sentence report at para. 195. While it

is true that Dair’s sale of cocaine base within 1000 feet of a school resulted in a 1-point

increase in his offense level, id. at para. 197, the only weight relevant to his Guidelines range

was the weight of cocaine and cocaine base handled by the conspiracy as a whole. Put

simply, the weight of the drugs recovered after the 1998 sale had no effect on Dair’s

sentence. Accordingly, the District Court did not abuse its discretion in denying Dair’s

motion to re-weigh.

III.   Conclusion

       For the foregoing reasons, we affirm Dair’s sentence in its entirety.



                                               7
