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


9-23-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4077




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                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ___________

                       No. 06-4077
                       ___________

            UNITED STATES OF AMERICA,

                             v.

                  DAVID WORRELLS,

                                            Appellant.
                       ___________

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
             (D.C. Criminal No. 00-cr-313-02)
         District Judge: Honorable J. Curtis Joyner
                       ___________

       Submitted Under Third Circuit L.A.R. 34.1(a)
                  September 11, 2008


Before: SLOVITER, FUENTES and ALDISERT Circuit Judges.

           (Opinion Filed: September 23, 2008)




                             1
FUENTES, Circuit Judge:

       David Worrells appeals from his 40-year post-Booker resentencing for conspiracy

to distribute cocaine base in violation of 21 U.S.C. §846, and possession of a firearm by a

convicted felon in violation of Title 18 U.S.C. § 922(g)(1). He argues that the District

Court acted unreasonably by giving undue weight to the United States Sentencing

Guidelines (“Guidelines”) in imposing Worrells’ sentence. Worrells also argues that the

District Court erred in determining the amount of cocaine reasonably attributable to

Worrells, and in calculating Worrells’ Guidelines range.1

       Because we write exclusively for the parties, we only discuss the facts and

proceedings to the extent necessary for resolution of this case. On February 1, 2001,

Worrells was found guilty by a jury of conspiracy to distribute cocaine base and

possession of a firearm by a convicted felon. He was acquitted of a second count of

possession of a firearm.

       Applying the December 2000 version of the Guidelines, the District Court found

that Worrells’ base offense level was 40 because 1.5 kilograms of cocaine base were



       1
          The District Court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We exercise plenary
review over a district court’s interpretation of the Guidelines, reviewing its factual
determinations for clear error. United States v. Grier, 475 F. 3d 556, 570 (3d Cir. 2007)
(en banc). We review a district court’s ultimate determination of a sentence for
reasonableness under a deferential abuse of discretion standard. United States v. Gunter,
527 F.3d 282, 284 (3d Cir. 2008) (citing Gall v. United States, — U.S. —, 128 S.Ct. 586,
597-98 (2007); United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006)).

                                             2
involved in his offense and because of the proximity of the offense to a protected

location. The District Court applied a two-level enhancement for possession of a

dangerous weapon and a four-level enhancement for a supervisory role in the offenses

resulting in a total offense level of 46. On May 24, 2001, Worrells was sentenced to life

imprisonment based upon his Guidelines range.

       Worrells appealed his conviction and initial sentence of life imprisonment to this

Court. Worrells argued, among other things, that the District Court did not properly

instruct the jury as to its duty to find the quantity of drugs reasonably foreseeable to each

defendant in the conspiracy, and that the District Court did not properly determine

Worrells’ Guidelines range. We affirmed stating that:

       the District Court properly determined Worrells’ maximum sentence under the
       statute. Contrary to Worrells’ argument, the District Court properly instructed
       the jury as to its duty to find the quantity of drugs reasonably foreseeable to
       each defendant in the conspiracy. The jury found that the quantity for Worrells
       was at least 1.5 kilograms, enough to place him in the statutory maximum of
       life imprisonment. See 21 U.S.C. 841(b)(1)(A). As such, there was no error
       under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
       (2000). Moreover, the District Court properly determined that Worrells was
       responsible for more than 1.5 kilos of crack (enough to place him in the highest
       guidelines category) based on the evidence mentioned above. See United States
       v. Collado, 975 F.2d 985 (3d Cir.1992).
               Fourth, the District Court did not commit clear error when it increased
       Worrells’ sentence based upon its factual findings that he was in possession of
       a gun during the crime and that he played a managerial role in the conspiracy.
       The police found a loaded firearm located next to Worrells at the time of his
       arrest. Furthermore, as mentioned supra, the police also caught Worrells with a
       different loaded firearm while he was driving with a co-conspirator. This
       provided alternative evidence for increasing Worrells’ sentence. The
       government also presented sufficient evidence, again mentioned supra, to show

                                            3
       that Worrells played a managerial role in the conspiracy.


United States v. Worrells, 94 Fed. Appx. 927, 930 (3d Cir. 2004) (per curiam) (footnotes

omitted). However, we subsequently vacated the sentence and remanded for resentencing

in accordance with Booker. Order, United States v. Worrells, Nos. 01-2399, 03-3290

(March 16, 2006) (citing United States v. Booker, 543 U.S. 220 (2005)).

       On September 5, 2006, the District Court held a resentencing hearing. At the

resentencing, the Government only sought a three-level enhancement for Worrells’

leadership role in the conspiracy. Consequently, the District Court found that Worrells’

offense level was 45. Nonetheless, Worrells’ Guidelines range remained life

imprisonment. The District Court noted the number of people whose lives were affected

by the large amount of cocaine base distributed by Worrells and his associates (App. 82,

88), and considering “the totality of the circumstances that [Worrells] present[ed]” (App.

87), imposed a sentence of forty years’ incarceration.

       Worrells argues that the District Court erred in failing to require the jury to make a

finding as to the drug quantity attributable to Worrells, and in submitting a

“constitutionally infirm” verdict slip to the jury. Worrells also argues that the District

Court erred in imposing Guidelines enhancements for distribution of cocaine base near a

protected location, for possession of a firearm, and for a managerial role in the offense.

We have previously determined that “the District Court properly instructed the jury as to

its duty to find the quantity of drugs reasonably foreseeable to each defendant in the

                                              4
conspiracy [and that] the jury found that the quantity for Worrells was at least 1.5

kilograms . . .” Worrells, 94 Fed. Appx. at 930. We also determined that Worrells’

Guidelines range was calculated correctly. Id. Worrells has not presented a compelling

reason to revisit these determinations.2 See In re City of Philadelphia Litig., 158 F.3d

711, 718 (3d Cir. 1998) (holding that we “will not reconsider questions that another panel

has decided on a prior appeal in the same case” absent “extraordinary circumstances”).

       We further conclude that the federal sentence of 40 years’ imprisonment was

reasonable. The record is clear that the District Court adequately considered the

sentencing considerations in 18 U.S.C. § 3553(a) and ultimately imposed a sentence

below the advisory Guidelines range.

       For the foregoing reasons, we will affirm the District Court's judgment of

sentence.




       2
         Worrells did not raise his objection to the enhancement for distribution of cocaine
base near a protected location on his previous appeal. This argument should have been
raised at that time. Further, the Court notes that the enhancement was appropriate
because Worrells was convicted of conspiracy to “distribute controlled substances within
1,000 feet of a school in violation of Title 21, U.S.C. § 860.” See Watterson v. United
States, 219 F.3d 232, 236 (3d Cir. 2000) (holding that enhancement did not apply where
defendant “was not charged with or convicted of conspiracy to distribute a controlled
substance in or near a school zone” (emphasis added)).
        Worrells may be eligible for a reduced sentence based on the 2007 amendments to
the Guidelines. This issue may be raised before the District Court. See 28 U.S.C. § 3582.

                                              5
