                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2756




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                                                  NOT PRECEDENTIAL


            IN THE UNITED STATES COURT
                     OF APPEALS
                FOR THE THIRD CIRCUIT


                        NO. 06-2756


              UNITED STATES OF AMERICA

                             v.

                   VERNON DOUGLAS
                a/k/a LEVERNE DOUGLAS
                       a/k/a SPIDER

                                  Vernon Douglas,
                                          Appellant



       On Appeal From the United States District Court
          For the Eastern District of Pennsylvania
            (D.C. Crim. Action No. 05-cr-00038)
           District Judge: Hon. R. Barclay Surrick


       Submitted Pursuant to Third Circuit LAR 34.1(a)
                       June 14, 2007

BEFORE: McKEE, STAPLETON and NYGAARD, Circuit Judges

                (Opinion Filed: July 3, 2007)
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       After a jury trial in September 2005 in the District Court, a jury convicted Vernon

Douglas of one count of possession of a firearm in furtherance of a drug trafficking crime,

18 U.S.C. § 924(c). The jury also convicted him of the other four crimes with which he

was charged: three violations of the Controlled Substances Act, 21 U.S.C. §§ 841(a)(1),

(b)(1)(C), 844, and one count of possession of a firearm by a convicted felon, 18 U.S.C. §

922(g)(1).

       On May 18, 2006, the District Court sentenced Douglas to life imprisonment for

his conviction of possession of a firearm in furtherance of a drug trafficking crime. The

District Court ordered that sentence to run concurrently with the sentences it imposed for

the other four counts, which ranged from 12 to 240 months.

       Douglas appeals from his sentence. We have jurisdiction under 18 U.S.C. §

3742(a), and we will vacate the sentence and remand for resentencing in light of our

decisions in United States v. King, 454 F.3d 187 (3d Cir. 2006) and United States v.

Colon, 474 F.3d 95 (3d Cir. 2007).

                                             I

       Before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

                                             2
(2005) rendered the United States Sentencing Guidelines advisory, a District Court’s

power to sentence a defendant outside of the range supplied by the Guidelines was limited

by the provisions of the Guidelines pertaining to “departures.” After Booker, we now

require that the District Court undertake a three-step process in imposing a sentence. The

District Court must: (1) calculate the applicable Guidelines range, (2) formally rule on

any departure motions, and (3) exercise its post-Booker discretion, considering the factors

set forth in 18 U.S.C. § 3553(a). United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006).

         In this case, at “step 1,” the District Court calculated the advisory Guidelines

sentence range to be 93 to 101 months. The Presentence Investigation Report (“PSR”)

recommends that range, PSR at 10, and the minute entry following the sentencing hearing

reflects that the District Court overruled both Douglas’s and the government’s objections

to the PSR. On this record, however, it is not clear to us how much of the difference

between the advisory Guidelines range and the ultimate sentence was imposed as a

departure at “step 2,” and how much was imposed as what we have called a

Booker “variance” at “step 3.” The parties briefed and argued both issues, and the

transcript of the sentencing hearing indicates that the District Court based the ultimate

sentence to some extent on both.

         Douglas suggests that his sentence was based, at least in part, on an upward

departure under § 4A1.3 of the Guidelines, which provides that “[i]f reliable information

indicates that the defendant’s criminal history category substantially under-represents the

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seriousness of the defendant’s crimes and the likelihood that the defendant will commit

other crimes, an upward departure may be warranted.” Douglas goes on to argue that, if

the District Court based his sentence on § 4A1.3, then it failed to follow the proper

procedure in doing so, and he is therefore entitled to a remand for resentencing. The

government concedes that it is not clear from the record to what extent Douglas’s

sentence was the product of an upward departure under the Guidelines (“step 2”) or an

upward “variance” under the District Court’s post-Booker discretion (“step 3”), and joins

Douglas in recommending a remand. Although the Government’s concession does not

relieve us of our independent duty to evaluate Douglas’s arguments, see United States v.

Vargas-Garcia, 434 F.3d 345, 348 (5th Cir. 2005) (affirming the challenged sentence,

despite the government’s concession that it was erroneous); United States v. Resendiz-

Patino, 420 F.3d 1177, 1182-83 (10th Cir. 2005) (same), we agree with both parties that a

remand is appropriate in this case.

                                             II

       Our pre-Booker precedents hold that, when a District Court imposes an upward

departure under § 4A1.3 of the Guidelines, it must do so according to a “ratcheting”

procedure, by which the District Court looks within the Guidelines to determine which

higher criminal history category best represents the seriousness of the defendant’s crimes

and the likelihood that the defendant will commit other crimes. United States v.

Kikumura, 918 F.2d 1084, 1111-12 (3d Cir. 1990). Moreover, the District Court “is

obliged to proceed sequentially through the categories, [and] may not move to the next

                                             4
higher category until it has found that the prior category still fails to adequately reflect the

seriousness of the defendant’s conduct.” United States v. Hickman, 991 F.2d 1110, 1114

(3d Cir. 1993). In Kikumura, we explained that the principle underlying the ratcheting

approach is that “that the appropriate length of a sentence should be determined from the

sentencing table, even outside the context of straightforward applications of underlying

offense and offender guidelines,” and that “the power to depart is not the power to throw

away the guidelines in favor of any sentence that strikes the judge as reasonable.” 918

F.2d at 1112 (citation and internal quotation marks omitted). Thus, before Booker, if a

District Court imposed a departure under § 4A1.3 without following the ratcheting

procedure, we would vacate the sentence and remand for resentencing. See, e.g., United

States v. Freeman, 316 F.3d 386, 390-91 (3d Cir. 2003); United States v. Cicirello, 301

F.3d 135 (3d Cir. 2002); United States v. Harris, 44 F.3d 1206, 1212-13 (3d Cir. 1995).

       Although the Supreme Court’s decision in Booker cast doubt on the continued

viability of the principle underlying Kikumura and Hickman, we held in King that District

Courts must still follow the ratcheting procedure when imposing upward departures under

§ 4A1.3. 454 F.3d at 195-96.

       In United States v. Colon, 474 F.3d 95 (3d Cir. 2007) we added that “[a] district

court need not rely on upward departures to sentence a defendant above the recommended

guidelines range.” As we explained in that case:

       When imposing such a sentence, a district court need only state on the
       record what factors it is considering. Inasmuch as we do not require any
       formulaic statement of reasons for imposing the final sentence, we will

                                               5
       uphold an above-the-guidelines sentence so long as it is reasonable and the
       district court’s statement of reasons supports it. Therefore, if a district court
       is sentencing above the guidelines range, as it did in this case, based on the
       section 3553(a) factors without granting a departure from the guidelines
       range, it is not bound by the ratcheting procedures we set forth in Kikumura
       and Hickman.

Id. at 99 (emphasis added). In Colon, however, it was clear from the record that the

District Court’s decision to sentence above the Guidelines range was based entirely on an

exercise of its post-Booker discretion, made at Gunter “step 3.” In a footnote, the Colon

panel added that the District Court “would have been required to use the ratcheting

procedure if it had made a traditional departure from the guidelines at step two in the

three-step process as noted in [Gunter].” Id. at 99-100 n.8.

                                              III

       On this record, it is not clear to us to what extent the District Court’s ultimate

sentence was based on an upward departure under § 4A1.3 of the Guidelines and to what

extent it was based on a Booker “variance.” For this reason, we will remand for

resentencing. As we held in King and Colon, to the extent that the District Court

sentences above the Guidelines based on an upward departure under § 4A1.3, it must

follow the ratcheting procedure in Kikumura and Hickman. While that procedure “does

not require the district court to go through a ritualistic exercise in which it mechanically

discusses each criminal history category it rejects en route to the category it selects,” it

does require “that the district court’s reasons for rejecting each lower category be clear

from the record as a whole.” Harris, 44 F.3d at 1212. To the extent that the District


                                               6
Court sentences above the Guidelines based on a Booker variance, the ultimate sentence

must be reasonable, and the District Court should explain its reasons for the ultimate

sentence with reference to the factors set forth in 18 U.S.C. § 3553(a). See Colon, 474

F.3d at 100; King, 454 F.3d at 196.

       We do not fault the District Court in this case, as the Supreme Court’s decision in

Booker cast doubt on the continued relevance of Guidelines-based departures, and King,

Gunter, and Colon were all decided after the District Court imposed Douglas’s sentence.

Our precedents following Booker hold, however, that the Guidelines remain the starting

point for the sentencing analysis, that departures imposed under § 4A1.3 must still follow

the ratcheting procedure, and that the record should make clear both the reasons

supporting the ultimate sentence and the extent to which the sentence imposed is based on

the initial Guidelines calculation, on a departure under the Guidelines, and on a Booker

variance. See, e.g., United States v. Vampire Nation, 451 F.3d 189, 198 (3d Cir. 2006)

(“[D]istrict courts should be careful to articulate whether a sentence is a departure or a

variance from the Guidelines range.”).

                                             IV

       For the reasons set forth above, we will vacate Douglas’s sentence and remand for

resentencing in light of King and Colon. Because we will vacate Douglas’s sentence, it

unnecessary for us to address his other objections to the sentence.




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