                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1355




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"USA v. Kirkland" (2008). 2008 Decisions. Paper 1404.
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                                                     NOT PRECEDENTIAL
                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No: 07-1355
                                    _______________

                           UNITED STATES OF AMERICA

                                             v.

                                  RUFUS KIRKLAND,

                                                  Appellant
                                    _______________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                                 (D.C. No. 06-cr-00189)
                      District Judge: Honorable Robert B. Kugler
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 4, 2008

            Before: BARRY, JORDAN, and HARDIMAN, Circuit Judges.

                                 (Filed March 20, 2008)
                                   _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Rufus Kirkland appeals his sentence of 168 months imprisonment for possessing

with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A). On appeal, Kirkland challenges the District Court’s
application of § 2D1.1(c)(4) of the United States Sentencing Guidelines (“U.S.S.G.” or

“Guidelines”). He maintains that the District Court erred by treating § 2D1.1(c)(4) as

mandatory, instead of advisory, in violation of United States v. Booker, 543 U.S. 220

(2005), and he urges us to vacate his sentence and remand his case for re-sentencing. For

the following reasons, we will affirm the District Court’s decision.1

I.       Background

         Because we write primarily for the benefit of the parties, we set forth only those

facts pertinent to the issues before us on appeal. Pursuant to a search warrant issued after

confidential government informants made controlled purchases of crack cocaine from

Kirkland, the police found a total of 129.43 grams of individually wrapped crack cocaine

packages in Kirkland’s apartment. Kirkland was charged with possessing with the intent

to distribute more than 50 grams of crack. Even though he had no plea agreement with

the government, Kirkland entered a plea of guilty to the indictment.

         The presentence investigation report set forth an advisory guideline range of 151 to

188 months, based upon Kirkland’s criminal history score and the offense of conviction.

Neither the government nor Kirkland challenged that calculation. Nevertheless, during

his sentencing hearing on January 30, 2007, Kirkland argued for a sentence of 120



     1
    We review the District Court’s interpretation of the Guidelines de novo. United States
v. Navarro, 476 F.3d 188, 191 (3d Cir. 2007). The sentence, including the District
Court’s decision not to grant a downward variance, is reviewed for reasonableness under
an abuse of discretion standard. United States v. Wise, Nos. 06-4926/4928, 2008 WL
361089, at *7 (3d Cir. Feb. 12, 2008).
                                              2
months, the mandatory minimum sentence for his offense, because he asserts that his

criminal history score overstated the seriousness of his prior history and the likelihood of

recidivism. He also argued that the application of U.S.S.G. § 2D1.1(c)(4) produced an

unjustifiable disparity between sentences recommended for offenses involving crack

cocaine and those recommended for offenses involving powder cocaine .

       The District Court rejected Kirkland’s argument regarding his criminal history,

finding that Kirkland’s frequent contact with the criminal justice system warranted full

consideration of his criminal history score. The District Court also rejected Kirkland’s

argument for a below-Guidelines sentence, finding that Kirkland ran a dangerous drug

dealing operation and that he had not been deterred by prior convictions. Following the

three-step analysis set forth in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), and

Gall v. United States, 128 S. Ct. 586 (2007), the District Court sentenced Kirkland to 168

months imprisonment, five years supervised release, and a $100 special assessment.

II.    Discussion

       During sentencing, the District Court acknowledged Kirkland’s argument that a

disparity existed between the powder cocaine and crack cocaine guidelines. The Court

went on, however, to recognize its discretion in formulating Kirkland’s sentence. It never

stated that the Guidelines are mandatory.

       Despite that, Kirkland argues that, because the District Court voiced confidence in

Congress’s ability to address the disparity between sentences recommended for crack

cocaine offenders and powder cocaine offenders, and because it sentenced him to

                                             3
imprisonment beyond the mandatory minimum, the Court must have believed it was

legally prohibited from imposing a reduced sentence based on the disparity. That

reasoning is simply untenable, as the District Court’s discretion naturally includes the

discretion to impose a sentence within the Guidelines. Wise, 2008 WL 361089, at *10-

11. Acknowledging a sense of deference to Congress on the policies behind sentencing

does not show that the District Court was confused about its discretion. Contrary to

Kirkland’s assertion, the reason that he was sentenced to 168 months imprisonment was

not because the District Court believed it was bound to follow the Guidelines, but instead

was because, as the District Court stated, Kirkland engaged in illegal behavior which the

Court found to be serious, dangerous, and undeterred by lesser sanctions.

       As we indicated in Wise, the fact that on November 1, 2007, the United States

Sentencing Commission adopted Amendment 706, which, as of March 3, 2008,

decreases by two levels the base offense levels for crack cocaine offenses, does not make

unlawful or inappropriate a sentence in which the District Court applied the Guidelines

that were in effect on the day of sentencing.2 Id. at *8.




  2
   In Wise we noted that, “[i]f and when [Amendment 706] takes effect, district courts
will, under the circumstances specified in § 3582(c)(2), be authorized to reduce the
sentences of defendants whose Guidelines ranges would be lowered by Amendment 706.”
Wise, 2008 WL 361089, at *9. As in Wise, our decision today is without prejudice to the
defendant’s statutory right to pursue a reduced sentence in the District Court under §
3582(c)(2), once the amendment to Guideline § 1B1.10 is fully effective.
                                              4
III.   Conclusion

        For the reasons stated, we affirm the judgment and sentence imposed by the

District Court.




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