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


1-24-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1476




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                                                    NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                     Nos. 06-1241 / 06-1476


                UNITED STATES OF AMERICA

                                v.

                     YUSEF MCDONALD,
                               Appellant in 06-1241

                UNITED STATES OF AMERICA

                                v.

                        DEON LISTER,
                                Appellant in 06-1476




           Appeal from the United States District Court
              for the Middle District of Pennsylvania
            (D.C. Criminal Action No. 04-cr-00407/-2)
          District Judge: Honorable William W. Caldwell


            Submitted Under Third Circuit LAR 34.1(a)
                       November 6, 2007

Before: SCIRICA, Chief Judge, AMBRO, and JORDAN, Circuit Judges

                    (filed: January 24, 2008 )




                           OPINION
AMBRO, Circuit Judge

           Yusef McDonald, Deon Lister, and a third co-defendant were indicted in the

Middle District of Pennsylvania for distribution and possession with the intent to

distribute 50 grams or more of crack cocaine. McDonald pled guilty to two counts of the

use of a communications facility to facilitate a drug transaction. Lister pled guilty to the

unlawful distribution and possession with the intent to distribute cocaine hydrochloride

and crack cocaine from April 2003 through November 2004. All other charges were

dismissed. McDonald and Lister now appeal the sentences imposed by the District

Court.1 While we affirm the sentence imposed on Lister, we remand for further

proceedings as to the sentence imposed on McDonald.

I.         Appeal of Yusuf McDonald

           At the time of sentencing, McDonald had served approximately two years of

aggregate five to ten-year sentences imposed by the Northampton County, Pennsylvania,

Court of Common Pleas. He appeals the failure of the District Court to credit him for

time already served on that state sentence. Our review of this issue is plenary. United

States v. Sabarese, 71 F.3d 94, 95 (3d Cir. 1999).

           U.S.S.G. 5G1.3(b) provides that a defendant’s sentence shall be adjusted if a term

of imprisonment resulted “from another offense that is relevant conduct to the instant




     1
         We have jurisdiction under 28 U.S.C. § 1291.

                                                2
offense of conviction . . . and that was the basis for an increase in the offense level.” It

directs the court to adjust “the sentence for any period of imprisonment already served on

the undischarged term of imprisonment if the court determines that such period of

imprisonment will not be credited to the federal sentence by the Bureau of Prisons,” and

states that the sentence “shall be imposed to run concurrently to the remainder of the

undischarged term of imprisonment.” Id.

       The Government conceded at the sentencing hearing that McDonald’s offenses

under state law were part of a “multi-county drug distribution operation, and that would

be relevant conduct.” App. 34. It argued, however, that because his Sentencing

Guidelines range (262-327 months) was so far above the 96-month statutory maximum,

McDonald should not be given credit for the approximately two years he served on the

state sentences.

       The District Court imposed the maximum 96-month term of imprisonment on

McDonald. It recommended to the Bureau of Prisons that the state facility be designated

the place of confinement, “thereby making these sentences concurrent with the

defendant’s [remaining] sentences [from the state case].” App. 37. Rejecting the

recommendation to the contrary in McDonald’s Pre-Sentence Investigation Report

(“PSR”),2 the District Court did not give McDonald credit for time already served on the



   2
    McDonald’s PSR indicates that the conduct underlying the state sentence was “fully
taken into account in the determination of the offense level for the instant offense.” The
PSR did not assign points in the calculation of McDonald’s criminal history because this

                                               3
state sentence. It also did not expressly consider the factors outlined in 18 U.S.C. §

3553(a) or express any intention to depart from the Sentencing Guidelines. Instead, the

Court appears to have based its decision not to give McDonald credit due to the general

consideration that McDonald already had received “a great break in the way he was

charged” and was not “entitled to anything.” Id.

       The first question on McDonald’s appeal is whether, as he contends, the conduct

underlying the state sentence is relevant conduct within the meaning of U.S.S.G.

5G1.3(b). As noted, the Government appeared to concede at the sentencing hearing that

it was relevant conduct. On appeal, the Government argues, seemingly half-heartedly, the

opposite. Complicating matters further, it is not clear what the District Court decided on

this point, particularly because, despite the Government’s concession to the contrary, the

Court apparently understood the Government to argue that the sales underlying the state

and federal charges were “not really connected.” App. 36.

       We are persuaded by the apparent concession of the Government and the

conclusion of the PSR that the conduct underlying the state sentence is relevant to the

conduct at issue in this case. However, in the absence of a finding by the District Court

on this point, we hesitate to rule on that issue before the Court has addressed it.

Accordingly, that question is appropriate for consideration on remand.

       Notwithstanding this open question, we may affirm if we conclude that, assuming



“is considered conduct that is part of the instant offense.”

                                              4
the conduct underlying the state sentence is relevant conduct, it did not raise the offense

level within the meaning of U.S.S.G. 5G1.3(b). The specific question in this case is

whether relevant conduct can be the basis for an increase in the Guidelines offense level

when that offense level already has surpassed a statutory maximum. The Government’s

description of the facts of this case exemplifies that question: McDonald, they assert,

distributed a large amount of drugs. This gave him an offense level (34) and a resulting

Guidelines sentencing range (262-327 months) well beyond the statutory maximum for

the crime with which he was charged (96 months). That distribution of a large amount of

drugs included a small subset of those drugs that did not affect his offense level. That

subset of drugs purportedly formed the basis of a conviction and sentence in state court.

Even taking away that smaller amount, the Government argues, the remaining amount of

drugs would still put McDonald well beyond the statutory maximum; moreover,

McDonald would receive the statutory maximum even if the smaller amount of drugs

were not counted in calculating the federal sentence. Should we follow this analysis, the

District Court did not err when it failed to give McDonald credit for the time served in

state prison for the smaller amount of drugs.3

       The Government may be correct to assert that a criminal defendant should not have

his sentence reduced simply because the PSR considers relevant conduct that, because of



   3
   The Government does not address the apparent inconsistency in the District Court’s
approach when it ruled that the sentences should run concurrently but that McDonald
nonetheless should not receive credit for time served.

                                              5
the operation of a statutory maximum, did not increase the actual sentence imposed.

However, we cannot evaluate the accuracy of the Government’s assertions regarding the

relative significance of the asserted large and small drug-sale conspiracies.4 The PSR

does not indicate the exact amounts involved in each conspiracy and the current record

does not tell us whether McDonald would have received a 96-month sentence even if the

District Court had not considered the conduct underlying the state sentence. For these

reasons, while any error by the District Court may be harmless, at this time we cannot

conclude that it was.

       Accordingly, we vacate McDonald’s sentence and remand for clarification.5


   4
    The Government’s analysis of the likely amount of drugs involved in the sales in
various counties probably is correct. Yet, as it acknowledges, the PSR fails to clarify the
amounts at issue, leaving us to speculate.
   5
    See United States v. Pray, 373 F.3d 358, 363 (3d Cir. 2004) (vacating and remanding
for clarification after challenge to application of U.S.S.G. § 5G1.3(b)). See also United
States v. Grier, 475 F.3d 556, 572 (3d Cir. 2007) (en banc) (“The nature of the final
sentence is, as always, a matter within the discretion of the District Court. We do ask,
however, that the District Court explain its decision on the record . . . .”).
        We recognize, particularly in light of the Supreme Court’s recent emphasis on the
importance of District Court discretion under 18 U.S.C. § 3553(a), Gall v. United States,
128 S.Ct. 586, 596-97 (2007), that the District Court may have intended to exercise such
discretion in imposing sentence on McDonald. At one point the Court stated, “I really
don’t think he’s entitled to anything. I think he’s gotten a great break in the way he was
charged.” App. 37. Nevertheless, and while we continue to eschew any requirement that
district judges follow a script in sentencing, the record is not sufficiently clear for us to
know whether the Court here was exercising its discretion to impose a sentence outside
the Guidelines. On remand, therefore, the Court should also make clear its intent in that
regard. Cf. Gall, 128 S.Ct. at 596-97 (“[A] district court should begin all sentencing
proceedings by correctly calculating the applicable Guidelines range. . . . [T]he district
judge should then consider all of the § 3553(a) factors to determine whether they support
the sentence requested by a party[, and then] . . . make an individualized assessment based

                                             6
II.    Appeal of Deon Lister

       The PSR prepared prior to Lister’s sentencing determined that he had a criminal

history category of VI with a base offense level of 36. It calculated an adjusted offense

level of 40, reflecting Lister’s possession of a dangerous weapon and his role in the

offense. The resulting Guidelines imprisonment range was 360 months to life. Pursuant

to the plea agreement, the Guidelines sentence was capped at 240 months. Lister did not

object at the sentencing hearing to the contents of his PSR.

       Prior to actual sentencing the Government moved for a downward departure to

reflect Lister’s substantial assistance to it. It recommended a sentence of 180 months’

imprisonment. Lister spoke at the sentencing hearing, as did the founder and president of

the National Incarcerated Parents and Family Network. Having considered this testimony

in support of Lister and other relevant factors (such as Lister’s criminal history), the

District Court sentenced him to 156 months’ imprisonment.

       Lister argues that the Court erred by failing to inquire into his knowledge of the

contents of the PSR or of his counsel’s review of that document. He also argues that the

sentence imposed is unreasonable and that his counsel failed to provide competent

representation.

       A.     Failure to Inquire into Knowledge of the Contents of the PSR

       Fed. R. Crim. P. 32(i)(1) requires that the sentencing court “verify that the



on the facts presented.”).

                                              7
defendant and the defendant’s attorney have read and discussed the presentence report

and any addendum to the report.” At sentencing, counsel for Lister stated: “We filed no

objections to the pre-sentence investigation basically because there was [sic] essentially

no objections to be made.” Lister took issue with “a tone that relied upon the accuracy

and truthfulness of [Lister’s] co-defendants,” but did not discuss any of the conclusions of

the PSR with which he now disagrees. The Government concedes that the District Court

erred in failing to inquire into whether Lister and his counsel had read and discussed the

PSR. It argues, however, that Lister was not prejudiced by this error.

       Because Lister did not object to this oversight, it is subject to plain-error review.

United States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000). Under that standard, we

review for error that was plain and that affected substantial rights. Id. If so, we

determine if the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993).

       Nothing in the record suggests that any error committed by the District Court

affected Lister’s substantial rights. He fails to assert that he did not review the PSR

before the sentencing hearing. Nor does he suggest that he did not discuss the PSR with

his counsel. In this light, Lister’s suggestions of prejudice are unpersuasive.6 He argues,

for example, that but for the failure to inquire into his review of the PSR, he “would have



   6
    Lister’s counsel fails to analyze this case under the plain error standard or to cite
Stevens. Notwithstanding this omission, counsel for Lister does identify supposed
disadvantages suffered by Lister as a result of the District Court’s error.

                                               8
had the opportunity to challenge the conclusions and averments in the PSR with which he

did not agree.” Yet Lister did have such an opportunity but stated that “there was [sic]

essentially no objections to be made” to the PSR. Similarly unpersuasive is Lister’s

argument that he would have addressed “the portions of the report he obviously disagreed

with” had the District Court stated whether it adopted the facts described in the PSR.

This leaves Lister’s substantial rights unaffected by the Court’s error. We thus reject this

aspect of his appeal.

       B.     Reasonableness of the Sentence

       Lister contends that his sentence is unreasonable because the District Court relied

on the PSR. As noted, Lister did not object to the PSR at the sentencing hearing.

Moreover, the Guidelines range (360 months to life) was well over the statutory

maximum (240 months) for the crime to which Lister pled guilty, which was much higher

than the sentence recommended by the Government (180 months), which in turn was

higher than the sentence imposed (156 months). Lister concedes that, even absent the

errors he alleges in the PSR, the Guidelines range would be higher than the statutory

maximum. Indeed, there is no plausible argument that the sentence imposed on Lister

was unreasonable. His argument that he should have received a sentence comparable to

the shorter sentences of his two co-defendants ultimately is a contention that, in

exercising its discretion, the District Court should have departed downward an even

greater extent from the statutory maximum. We will not entertain such a challenge. See



                                             9
United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006).

          C.    Ineffective Assistance of Counsel

          Lister alleges ineffective assistance of counsel at the sentencing hearing. We have

explained that such arguments are raised best in the first instance in the District Court

pursuant to 28 U.S.C. § 2255. See United States v. Headly, 923 F.2d 1079, 1083 (3d Cir.

1991). No reason exists for us even to consider doing otherwise.7

                                            *****

          Because each of Lister’s arguments is unpersuasive, we affirm his sentence.




   7
       Nor does the Government ask us to reach the merits of this question.

                                               10
