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


6-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2404




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"USA v. Jaime" (2007). 2007 Decisions. Paper 1007.
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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-2404
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

                                   JESSIE JAIME,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 05-cr-00034E)
                    District Judge: Honorable Sean J. McLaughlin
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 17, 2007

      Before: FISHER and ROTH, Circuit Judges, and RAMBO,* District Judge.

                                 (Filed: June 5, 2007)
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Sylvia H. Rambo, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.

       Jessie Jaime pleaded guilty to one count of possessing with the intent to distribute

and distributing five or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(B)(ii). Although he requested that the District Court consider the 100:1

sentencing disparity between crack cocaine and powder cocaine offenses, the Court

determined that it did not have the authority to do so. For the reasons that follow, we will

vacate the sentence imposed by the District Court and remand for resentencing.

                                               I.

       As we write only for the parties, we will forgo a lengthy recitation of the factual

and legal background to this case. On May, 17, 2005, an informant working with the Erie

Area Gang Law Enforcement Task Force placed a phone call to Jaime to arrange the

purchase of one ounce of crack cocaine. Later that day, Jaime provided the informant

with one ounce of crack cocaine in exchange for $1,000. The entire transaction was

monitored by law enforcement officials, and Jaime was arrested after the sale had been

completed.

       On July 13, 2005, a grand jury returned a one-count indictment charging Jaime

with possessing with the intent to distribute and distributing five or more grams of

cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). Jaime pleaded

guilty to the indictment on October 6, 2005.




                                               2
       During sentencing, Jaime filed a petition in which he agreed that the advisory

range under the United States Sentencing Guidelines (“Guidelines”) for his offense was

84 to 105 months. However, he argued that his sentence should be reduced based on the

unfairness of the 100:1 ratio between the advisory Guidelines range for crack cocaine and

powder cocaine offenses. In response, the Government argued that the District Court was

not free to substitute its policy judgment on this matter for that of Congress.

       On April 7, 2006, the District Court concluded that it did not have the authority to

vary from the relevant advisory Guidelines range based on a determination that the

disparity between crack cocaine offenses and powder cocaine offenses was unfair.

Accordingly, it sentenced Jaime to a term of 88 months imprisonment, followed by 4

years of supervised release. This appeal followed.

                                             II.

       We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a)(1). When reviewing a district court’s imposition of a sentence, we

exercise plenary review over a its interpretation of the Guidelines and constitutional

determinations. United States v. McKoy, 452 F.3d 234, 236 (3d Cir. 2006).

                                             III.

       Jaime’s one argument on appeal is that the District Court erred by concluding that

it did not have the legal authority to consider the Sentencing Commission’s view that the

100:1 crack to powder cocaine ratio overstates the seriousness of crack offenses and



                                              3
creates unwarranted disparity. Based on our recent holding in United States v. Gunter,

462 F.3d 237 (3d Cir. 2006), we agree.

       In Gunter, we explained that one of the ways a sentencing court can violate Booker

is “by applying the Guidelines mandatorily (even though the resulting sentence was

calculated solely upon facts that were admitted by the defendant, found by the jury, or

based upon a prior conviction), as Booker makes them no more than advisory.” Id. at

247. There, we concluded that, even though the district court had correctly calculated the

proper Guidelines range and considered the motions of both parties related to departures,

it had failed to “exercise[] [its] discretion by considering the relevant [§ 3553(a)] factors,”

because it determined that it lacked the authority to consider whether the 100:1 crack to

powder cocaine ratio was unfair in assessing a sentence. Id. (quoting United States v.

King, 454 F.3d 187, 194 (3d Cir. 2006)) (internal quotation marks omitted). By so doing,

“the Court [effectively] treated the crack cocaine Sentencing Guidelines as mandatory and

not advisory.” Id.

       This is precisely what happened in the instant case. Because Jaime’s sentencing

occurred prior to our decision in Gunter, the District Court concluded that it did not have

the authority to consider the sentencing differential between crack and powder cocaine

offenses. The Government’s arguments to the contrary are unavailing. As

“[p]ost-Booker a sentencing court errs when it believes that it has no discretion to

consider the crack/powder cocaine differential incorporated in the Guidelines – but not



                                              4
demanded by 21 U.S.C. § 841(b) – as simply advisory” when “imposing the actual

sentence after considering the relevant § 3553(a) factors,” id. at 249, we conclude that the

District Court erred in this case.1

                                             IV.

       For the foregoing reasons, we will vacate the sentence imposed by the District

Court and remand for resentencing.




       1
         Of course, as we did in Gunter, we emphasize here that “the District Court is
under no obligation to impose a sentence below the applicable Guidelines range solely on
the basis of the crack/powder cocaine differential.” 462 F.3d at 249. Nor do we “suggest
(or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as
this is verboten.” Id. We remand simply so that the District Court may consider
arguments that it believed it could not consider during the initial sentencing proceeding.

                                              5
