                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 08-4366
                                     ______________

                             UNITED STATES OF AMERICA

                                            v.

                                 REGINALD GADSDEN,
                                              Appellant

                                     ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                        (D.C. Crim. No. 08-cr-00017-002)
                   District Judge: Honorable Sylvia H. Rambo
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 11, 2011
                                    ____________

              Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

                                (Filed: January 20, 2011 )
                                      ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

       Reginald Gadsden was charged with four drug trafficking and firearm offenses,

and subsequently pled guilty to one count of conspiracy to possess with intent to
distribute marijuana. Prior to sentencing, Gadsden‘s Guidelines range was calculated as

77 to 96 months in prison, which included a career offender enhancement. The District

Court rejected his objections to the PSR, which centered on the premise that the

Guidelines range overstated his criminal history and likelihood of recidivism. The Court

also rejected his request that it order his federal sentence to run concurrent with a

prospective state parole revocation sentence. Gadsden was sentenced, as relevant here, to

77 months‘ imprisonment.

       On appeal, Gadsden argues that his sentence was ―harsh, excessive and not

reasonable‖ and that the Court erred on the concurrent sentence issue. We will affirm.

                                      I. Background

       Writing primarily for the parties, we discuss only those facts relevant to our

analysis.

       On October 18, 2007, employees of an auto shop in Harrisburg, Pennsylvania,

unexpectedly received a package that was later found to contain 20 pounds of marijuana.

Individuals repeatedly entered the shop to inquire about the package, engaging in

threatening behavior and brandishing a firearm. Because the shop‘s owners were

concerned for their safety, they moved the package to another location, and reported what

had transpired to the authorities. The following morning, officers went to the shop to

investigate. Upon arriving, they observed two men across the street. The men saw the

officers, and drove away. The officers conducted a traffic stop. Auto shop personnel


                                              2
identified Reginald Gadsden as one of the individuals who had come into the shop the

previous day, and he was arrested. A subsequent search of the area where the two men‘s

car had been parked uncovered a firearm and ammunition matching the caliber of the gun.

Gadsden was indicted, and on April 8, 2008, pled guilty to conspiracy to possess with

intent to distribute marijuana, in violation of 21 U.S.C. § 846.1

       As noted above, Gadsden‘s Guidelines range was 77 to 96 months in prison, and

he argued that that range overstated his criminal history and likelihood of recidivism. At

the sentencing hearing, the District Court noted, extensively discussed, and then rejected

his arguments, emphasizing that concurrent sentences for a string of offenses when

Gadsden was much younger not only did not render them single rather than separately

countable offenses for purposes of criminal history computation and career offender

classification, but also spoke to the seriousness of that history. After addressing these and

various other issues that Gadsden had raised, the Court asked him to confirm, ―did I not

cover any of the[ issues]?‖ Gadsden replied, ―Yeah, you covered them. You covered

them.‖ App. at 104.

       Gadsden also noted that he was subject, in separate state proceedings, to a parole

revocation sentence. He accordingly asked the Court to impose his federal sentence to

run concurrent with the prospective state sentence. Noting that the Pennsylvania Parole

Board had jurisdiction over the latter sentence, however, the Court demurred: ―Well, I


1
  Gadsden‘s brother, Brian – the second man – was similiarly identified and arrested. His
appeal from a conditional plea of guilty is currently pending before this Court.
                                              3
think probably the parole board would have to take into consideration my sentence

because I can‘t predict what they‘re going to do. . . . They‘ll certainly know what I‘ve

done, so maybe they‘ll take that into consideration.‖ Id. at 105. Undeterred, Gadsden

repeated his plea for a concurrent sentence, and the Court replied, ―They probably have to

give you credit toward your parole with the sentence that I give you. That‘s the only thing

I know that could be done.‖ Id. at 106.

       The District Court then addressed the § 3553(a) sentencing factors, including

Gadsden‘s arguments concerning his work history and prospects, and his family concerns.

Stating that this crime and Gadsden‘s criminal history were serious, however, the Court

imposed a sentence of 77 months in prison, the low end of the Guidelines range. Gadsden

timely appealed.

                                      II. Discussion

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

       We review the reasonableness of a sentence for abuse of discretion. United States

v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (citing Gall v. United States, 552 U.S. 38

(2007)). The burden falls on the challenging party to demonstrate unreasonableness.

United States v. King, 454 F.3d 187, 194 (3d Cir. 2006). An argument not raised before

the District Court is subject to review for plain error. See Fed. R. Crim. P. 52(b); see also

United States v. Evans, 155 F.3d 245, 248 (3d Cir. 1998).


                                             4
       A sentencing court must: (1) properly calculate the applicable Guidelines range;

(2) formally rule on departure motions; and (3) after hearing the parties‘ arguments and

considering the § 3553(a) sentencing factors, exercise its discretion before determining

what sentence to impose. See United States v. Wise, 515 F.3d 207, 216-17 (3d Cir. 2008)

(citations omitted). The court must ―g[i]ve meaningful consideration to the § 3553(a)

factors[,]‖ and ―the record must show a true, considered exercise of discretion‖ and

treatment of ―parties‘ non-frivolous arguments.‖ United States v. Jackson, 467 F.3d 834,

841 (3d Cir. 2006). On appellate review, ―[w]e continue to treat ‗discretionary denials of

departure motions in calculating sentencing ranges‘ the same as we did pre-Booker[,]‖

United States v. Jones, 566 F.3d 353, 366 (3d Cir. 2009) (quoting Jackson, 467 F.3d at

839), which is to say that ―‗[w]e do not have jurisdiction to review discretionary decisions

by district courts to not depart downward.‘‖ Id. (quoting United States v. Vargas, 477

F.3d 94, 103 (3d Cir.2007)).

       The District Court did what it was required to do. Beginning with the procedural

step, the Court correctly calculated Gadsden‘s Guidelines range. Gadsden‘s argument to

the contrary fails—especially his contention, first raised on appeal, that it was error to

assign him an additional point because the offense at issue here occurred within two years

of his release from prison. A Guidelines amendment effective on November 1, 2010

eliminated the assignment of additional points for recent crimes, but recency points were

assigned under the Guidelines applicable at the time of Gadsden‘s sentencing and the


                                              5
recent amendment was not made retroactive. Compare U.S.S.G. § 4A1.1(e) (2007) with

id. §§ 1B1.10(c), 4A1.1(e) and Historical Notes, Amendments (2010). Moreover, as the

government notes, Gadsden‘s 17 criminal history points already exceeded the 13-point

threshold for Category VI offender classification—a classification for which Gadsden

also qualified by virtue of career offender status. See PSR ¶ 33; U.S.S.G. § 5, Part A

(Sentencing Table). Gadsden has not shown that the Court erred in calculating his

Guidelines range.

       Nor has Gadsden shown that the District Court failed to consider arguments that he

made concerning a Guidelines departure or the § 3553(a) factors. The Court explicitly

considered the mitigating factors that Gadsden offered before it rejected his departure

motion, citing the seriousness of his offense and his criminal history. It was within the

Court‘s discretion to do so. See Jackson, 467 F.3d at 841; see also United States v.

Bungar, 478 F.3d 540, 546 (3d Cir. 2007) (―[A] district court‘s failure to give mitigating

factors the weight a defendant contends they deserve [does not] render[] the sentence

unreasonable.‖). At the same time, the Court gave credence to at least certain of

Gadsden‘s arguments, rejecting as it did the government‘s call for a higher sentence, and

noting, when it imposed a sentence at the low end of the applicable Guidelines range, that

―[a]t least some consideration can be given . . . for the fact that a lot of his criminal

activity occurred in close proximity to each other and at an early age.‖ App. at 107.

Accordingly, there is no evidence that the Court abused its discretion—much less plainly


                                               6
erred—or that the sentence that it imposed was unreasonable.

       Gadsden also argues that the District Court ―was not aware that it had the power to

sentence [him] concurrently to his state parole violation[, and that t]his failure clearly

requires a reversal since the sentencing court did not know that she had [that] power[.]‖

Appellant‘s Br. at 10 (citing U.S.S.G. § 5G1.3). As the government notes in its brief, the

issue that Gadsden raises is unresolved among the courts of appeals, and we have not

resolved it in a precedential opinion. See United States v. Randolph, 80 Fed. Appx. 190

(3d Cir. 2003) (citing cases). We need not resolve the issue here, given the circumstances

of this case.

       The Guidelines provide, in relevant part:

                If the instant offense was committed . . . after sentencing for,
                but before commencing service of, [a] term of imprisonment,
                the sentence for the instant offense shall be imposed to run
                consecutively to the undischarged term of imprisonment.
                ...
                (Policy Statement) In any other case involving an
                undischarged term of imprisonment, the sentence for the
                instant offense may be imposed to run concurrently, partially
                concurrently, or consecutively to the prior undischarged term
                of imprisonment to achieve a reasonable punishment for the
                instant offense.

U.S.S.G. § 5G1.3(a), (c). In part, circuit courts‘ varying approaches to this issue relate to

the fact that parole revocation may or may not be found to qualify, in a technical sense, as

an undischarged term of imprisonment. In any event, it appears from the text of §

5G1.3(c) that the Guidelines either tend towards endorsing consecutive sentences, or, if


                                               7
nothing else, favor courts having discretion as to how they resolve the issue in a particular

case. See id.2

       Gadsden misconstrues both the District Court‘s actual statements and the

Guidelines when he describes ―the sentencing court []as not aware that it had the power to

sentence defendant concurrently[,]‖ and argues that such unawareness ―clearly requires a

reversal.‖ Appellant‘s Br. at 10. Arguably, the Court‘s statements on this issue were

ambiguous. No matter how they are read, however, the Court neither refused to do

something it had to do, nor did something it was not permitted to do. Nor, we note, had

Gadsden specifically argued § 5G1.3, much less argued for one or another application of


   2
    The accompanying Commentary and Application Notes to § 5G1.3 bear this out:
      Under subsection (c), the court may impose a sentence concurrently,
      partially concurrently, or consecutively to the undischarged term of
      imprisonment[ i]n order to achieve a reasonable incremental punishment for
      the instant offense and avoid unwarranted disparity, [taking into] . . .
      consider[ation, e.g.,] . . . [t]he fact that the prior undischarged sentence may
      have been imposed in state court rather than federal court, or at a different
      time before the same or different federal court[, and] . . . [a]ny other
      circumstance relevant to the determination of an appropriate sentence for
      the instant offense. . . . [This principle also] applies in cases in which the
      defendant was on . . . state . . . parole[] or supervised release at the time of
      the instant offense and has had . . . [it] revoked. Consistent with the policy
      set forth [elsewhere in the Guidelines,] . . . the Commission recommends
      that the sentence for the instant offense be imposed consecutively to the
      sentence imposed for the revocation. . . . [Moreover, where a court is] faced
      with a complex case in which a defendant may be subject to multiple
      undischarged terms of imprisonment that seemingly call for the application
      of different rules[,] . . . the court may exercise its discretion in accordance
      with subsection (c) to fashion a sentence of appropriate length and structure
      it to run in any appropriate manner to achieve a reasonable punishment for
      the instant offense.
U.S.S.G. § 5G1.3 Application Note 3(A)(iv)-(v), (C), (D) (emphasis added).
                                                 8
§ 5G1.3 in light of the conflicting case authority. Accordingly, given the then-

prospective state disposition of Gadsden‘s parole violation, it cannot be said that the

Court plainly erred when it did not rule either way as to a concurrent or consecutive

sentence, but rather followed all proper procedures and imposed a not unreasonable

federal sentence, while noting that Pennsylvania might or might not adjust its own

disposition in light of it.

                                     III. Conclusion

       For the foregoing reasons, and having reviewed Gadsden‘s remaining arguments

and found them unpersuasive, we will affirm the judgment of sentence.




                                             9
