                                                                NOT PRECEDENTIAL

                        UNITED STATE COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-4779
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                 ALFRED STEWART,
                                                  Appellant
                             __________________________

                     On Appeal from the United States District Court
                    for the District of Middle District of Pennsylvania
                            (D.C. Criminal No. 1:10-cr-00085)
                     District Judge: Honorable Christopher C. Conner
                              __________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  February 10, 2012

  Before: SLOVITER and VANASKIE, Circuit Judges, and POLLAK, District Judge*

                                (Filed: February 23, 2012)
                                     _____________

                                       OPINION
                                     _____________

VANASKIE, Circuit Judge.

       Alfred Stewart pleaded guilty in the Middle District of Pennsylvania to possession

with intent to distribute cocaine base in violation of 21 U.S.C. § 841. Stewart was a

       *
        The Honorable Louis H. Pollak, Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.

                                            1
career offender under the U.S. Sentencing Guidelines (“U.S.S.G.”), resulting in a total

offense level of 29 and a criminal history category VI, producing an advisory sentencing

guideline range of 151 to 188 months. Stewart objected to the career offender

designation and moved for a downward departure of one criminal history category under

U.S.S.G. § 4A1.3(b)(1). The District Court denied the motion for downward departure,

but granted a variance based on pertinent 18 U.S.C. § 3553(a) factors, ultimately

sentencing Stewart to 110 months’ imprisonment.

       Stewart has appealed his sentence, asserting that the District Court erred by

denying the departure motion and that he received a substantively unreasonable sentence

despite the 41-month variance below the minimum prison term in the applicable

guideline range. We reject these arguments and will affirm.1

                                             I.

       We generally do not review the denial of discretionary departure motions. See

United States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006) (“courts of appeals . . . have

no authority to review discretionary denials of departure motions in calculating

sentencing ranges”). An exception exists if the “District Court refused such a departure

in violation of law.” United States v. Batista, 483 F.3d 193, 199 (3d Cir. 2007). If the

District Court properly understood its authority to grant a departure, we lack jurisdiction

to review the denial of a request for downward departure. Id.



       1
        The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction to decide this appeal pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

                                             2
       The record reveals that the District Court clearly understood its authority to grant

the U.S.S.G. § 4A1.3 departure. The District Court adhered to the proper three-step

sentencing procedure by calculating the advisory sentencing guideline range, ruling on

the departure motion, and considering the factors under 18 U.S.C. § 3553(a). See United

States v. Gunter 462 F.3d 237, 247 (3d Cir. 2006). In denying Stewart’s departure

motion, the District Court articulated its reasons on the record why Stewart’s criminal

history prohibited him from receiving a downward departure under U.S.S.G. § 4A1.3.

This serves as clear proof that the District Court was aware of its authority to depart.

Therefore, we lack authority to review Stewart’s challenge to the denial of his departure

motion.

                                             II.

       A challenge to the substantive reasonableness of a sentence is reviewed under an

abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). We will

not reverse a procedurally sound sentence “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).

Because a sentence within the guideline range may be presumed reasonable, see Rita v.

United States, 551 U.S. 338, 347 (2007), it is exceedingly difficult for a defendant to

demonstrate that the benefit given by a below guideline range sentence is unreasonable.

See United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006) (“[A] within-guidelines

range sentence is more likely to be reasonable than one that lies outside the advisory

guidelines range.”).

                                              3
       The District Court properly calculated the guideline range, then proceeded to

consider the U.S.S.G. § 4A1.3 downward departure motion and § 3553(a) factors when

fashioning Stewart’s 41 month below-guideline range sentence. The District Court

considered Stewart’s role as a street-level dealer, the dates and weights of the drugs sold,

the circumstances of his prior criminal history, and his cooperation with the authorities.

Nevertheless, Stewart complains that the District Court gave too much weight to the

career offender guideline. The argument is unavailing. Stewart is a recidivist with a

prior criminal record that began at the age of thirteen and continued unabated through the

instant offense of conviction. Stewart’s record is comprised of multiple drug convictions,

one of which included a firearm, a resisting arrest conviction, and a series of probation

and parole violations. The District Court did not abuse its discretion by varying 41

months below the guideline range and in no way imposed an unreasonable sentence.

                                            III.

       For the foregoing reasons, we will affirm the judgment of sentence imposed by the

District Court.




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