                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 11-2503
                                 ___________

                       UNITED STATES OF AMERICA

                                       v.

                             MICHAEL LOWRY,
                                          Appellant
                          _______________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                      D.C. Criminal No. 10-cr-00238-001
                           (Honorable Alan N. Bloch)
                               ______________

                             Argued April 17, 2012

           Before: SCIRICA, AMBRO and NYGAARD, Circuit Judges.

                             (Filed: May 10, 2012)

RENEE PIETROPAOLO, ESQUIRE (ARGUED)
Office of Federal Public Defender
1500 Liberty Center
1001 Liberty Avenue
Pittsburgh, Pennsylvania 15222
       Attorney for Appellant

LAURA S. IRWIN, ESQUIRE (ARGUED)
REBECCA R. HAYWOOD, ESQUIRE
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, Pennsylvania 15219
       Attorneys for Appellee
                                   _________________

                               OPINION OF THE COURT
                                  _________________

SCIRICA, Circuit Judge.

       Michael Lowry pleaded guilty to possession with intent to distribute heroin, 21

U.S.C. § 841(a)(1), (b)(1)(C). He was sentenced to 120 months’ imprisonment, which he

appeals. We will vacate and remand for resentencing.

                                             I.

       After an attempted drug sale to a police informant, Lowry was indicted for

possession with intent to distribute less than 100 grams of heroin in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C). He pleaded guilty to the offense.

       The Presentence Investigation Report determined that, based on an offense level of

15 with six criminal history points, the range of imprisonment under the sentencing

guidelines was 24 to 30 months. Absent any objections, the District Court adopted the

report as accurate. The government filed a sentencing memorandum requesting an

upward variance to 72 months because Lowry’s criminal history category did not include

three convictions for juvenile drug trafficking or adequately consider Lowry’s continued

recidivism. The memorandum also alleged that Lowry had committed an uncharged

murder. Lowry responded by noting that the previous convictions were for small-time

dealing and possession, and submitted that, if the court wished to consider these

convictions, it could raise Lowry’s criminal history category to the next category rather

than doubling the recommended maximum sentence. Lowry also disputed the


                                             2
government’s assertion that he had committed a murder and argued any consideration of

this factor in sentencing would violate his constitutional rights.

       At the sentencing hearing, the District Court stated that it would not consider the

allegations of Lowry’s involvement in a murder in sentencing. It then sentenced Lowry

to 120 months’ imprisonment. In making this determination, the Court reasoned that the

Guidelines’ recommended range was insufficient because it failed to account for Lowry’s

three juvenile adjudications. It also noted that Lowry had served most of a three- to six-

year state sentence for a similar crime, and concluded that, “[i]f a six-year sentence did so

little to deter the Defendant’s criminal activities, a guidelines sentence in the range of 24

to 30 months would have little or no impact.” The Court determined that “a guideline

sentence would not adequately protect the public from the Defendant, provide any hope

for rehabilitation, or provide adequate deterrence,” and that a “a sentence substantially

higher is needed in this case.”

       Lowry timely appealed. 1

                                             II.

       We review sentencing decisions in two stages. First, we determine whether the

sentencing court committed “significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence—including an


1
  The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              3
explanation for any deviation from the Guidelines range.” United States v. Gall, 552

U.S. 38, 51 (2007). If we determine the district court committed procedural error, we

remand for re-sentencing. United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010).

But if the decision is procedurally reasonable, we proceed to review for substantive

reasonableness, affirming “unless no reasonable sentencing court would have imposed

the same sentence on that particular defendant for the reasons the district court provided.”

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).

       The Supreme Court has made it “pellucidly clear that the familiar abuse-of-

discretion standard of review . . . applies to appellate review of sentencing decisions.”

Gall, 552 U.S. at 46. We do not presume a sentence outside the Guidelines range

unreasonable, although a “major departure should be supported by a more significant

justification than a minor one.” Id. at 50. The ultimate “[t]ouchstone of ‘reasonableness’

is whether the record as a whole reflects rational and meaningful consideration of the

factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571

(3d Cir. 2007) (en banc). In making this determination, we give “due deference” to the

district court’s determination that “the § 3553(a) factors, on a whole, justify the extent of

the variance.” Gall, 552 U.S. at 51. The mere “fact that the appellate court might

reasonably have concluded that a different sentence was appropriate is insufficient to

justify reversal of the district court.” Id.

       Here, the sentence imposed by the District Court constituted a substantial upward

variance: it was 400% greater than the maximum that the District Court properly

calculated under the Guidelines and nearly double the sentence sought by the

                                               4
government. Nonetheless, a substantial variance may be procedurally reasonable as long

as it is “accompanied by a thorough justification of the sentence, ‘including an

explanation for any deviation from the Guidelines.’” United States v. Negroni, 638 F.3d

434, 446 (3d Cir. 2011) (quoting Gall, 552 U.S. at 51).

       The District Court recognized that it was imposing a sentence “substantially

higher” than that recommended under the Guidelines, and justified its decision by

reference to several of the § 3553(a) factors. Nevertheless, despite this thoughtful

analysis, the proffered explanation is insufficient to support the sentence, which we

conclude was procedurally unreasonable.

       Most significantly, the District Court did not consider 18 U.S.C. § 3553(a)(6),

which requires courts to consider “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar conduct.”

Although we fault defendant’s counsel for not raising the issue of disparity more clearly

(particularly in response to the government’s request for a sentence more than twice the

Guidelines’ recommended maximum), we believe that, under the totality of the

circumstances and in view of the advisability to provide a substantial explanation for a

substantial variance, 2 the issue was adequately raised to warrant consideration. The

District Court was not obligated to explicitly discuss this question as long as “the record

makes clear the court took the factors into account in sentencing.” United States v.


2
 The issue of disparity was implicated by the defendant’s urging that he receive a
sentence within the guidelines, as well as his proposal to revise his criminal history
category to the next category, Category IV, rather than the substantial increase the
government sought.
                                             5
Cooper, 437 F.3d 324, 329 (3d Cir. 2006). But here, where there is no suggestion in the

record that the District Court considered sentencing disparities, we cannot determine that

this standard was satisfied. See Merced, 603 F.3d at 224. We accordingly conclude that

the sentence was procedurally unreasonable and will remand for resentencing.

                                           III.

       For the foregoing reasons, we will vacate Lowry’s sentence and remand for

resentencing.




                                            6
USA v. Michael Lowry, No. 11-2503
NYGAARD, Circuit Judge, concurring.

        I agree with the majority that Michael Lowry’s sentence should be vacated and
remanded to the District Court for resentencing. I, however, would do so for a different
reason because in my view, counsel at sentencing rendered Lowry ineffective assistance
by failing to properly object to the severity of his sentence.

       The majority believes that counsel adequately raised the sentencing disparity,
obligating the District Court to address it. I do not. I agree that, where the district court
substantially varies from the Guidelines, it must provide a substantial explanation for
doing so. Nonetheless, it is counsel’s responsibility to identify deficiencies in the district
court’s reasoning so that—in addition to preserving the issue for appeal—the court has an
opportunity to augment its explanation or, perhaps, alter its decision. It is asking too
much of the District Court that it divine from vague references to the Guidelines that
counsel believes that the sentence is unreasonably disparate from others similarly
situated.

       In my view, the glaring deficiency was with counsel’s failure to raise the
sentencing disparity at the sentencing hearing. Ineffective assistance of counsel claims
are generally not reached on direct appeal except, in those rare circumstances, where “the
record sufficiently establishes a basis for our review.” United States v. Theodoreopoulos,
866 F. 2d 587, 598 (3rd Cir. 1989) overruled on other grounds by United States v. Price,
76 F.3d 526, 528 (3d Cir. 1996); see also Government of Virgin Islands v. Zepp, 748 F.2d
125, 133 (3d Cir. 1984). This case fits within that narrow exception because there is no
need for further factual development here. It was incumbent upon counsel, knowing that
the Government was going to ask for a sentence in excess of 72 months, to come armed,
not only with an objection to the disparity of the sentence, but with exemplar evidence
sufficient to convince the District Court that the sentence is unreasonably disparate from
others similarly situated. I would remand on this basis.




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