                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-1391
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                             RAZHON A DICKEY, a/k/a R,

                                 RAZHON A. DICKEY,
                                                          Appellant


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. No. 3-09-cr-0034-001)
                       District Judge: Honorable Kim R. Gibson


                       Submitted Under Third Circuit LAR 34.1(a)
                                  on October 27, 2011

               Before: FISHER, VANASKIE and ROTH, Circuit Judges

                            (Opinion filed: January 25, 2012)



                                      OPINION


ROTH, Circuit Judge:

       Razhon A. Dickey appeals the District Court’s January 31, 2011, judgment of

sentence. Dickey contends that the District Court erred in finding that the Fair
Sentencing Act of 2010 did not apply to him and failed to rule on his motion for a

downward variance. For the following reasons, we will vacate the sentence the District

Court imposed and remand for resentencing.

I.     Background

       In June 2009, as part of an ongoing investigation into the distribution of cocaine,

law enforcement agents worked with a confidential informant to make several controlled

purchases of crack cocaine from Dickey. As a result of the transactions, 24.8 grams of

cocaine base were attributable to him.

       On September 15, 2009, the grand jury returned a five-count Indictment charging

Dickey with conspiracy to distribute and possess with intent to distribute five or more

grams of cocaine base, in violation of 21 U.S.C. § 846 (Count I), distribution of five or

more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii)

(Counts 2 and 4), distribution of less than five grams of cocaine base, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 3), and possession with intent to distribute

less than five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C) (Count 5). On February 18, 2010, Dickey pled guilty to all five counts.

       Prior to sentencing, Dickey moved for a downward departure and/or variance

based on the sentencing disparity between crack cocaine and powder cocaine, the

overstatement of his criminal history, and his personal history and characteristics. In

addition, he argued that the FSA applied to him. After thoroughly considering the issue,

the District Court declined to apply the FSA to Dickey and concluded that he would be

sentenced in accordance with the pre-FSA statutory mandatory minimums.

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       At the sentencing hearing on January 26, 2011, the District Court determined that

Dickey had a total offense level of 21 and criminal history category of IV, resulting in an

advisory Guidelines range of 57 to 71 months. Because 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), and 846 imposed a mandatory minimum term of imprisonment of five

years, the District Court found that Dickey’s actual Guidelines range was 60 to 71

months. After considering the extensive record, including Dickey’s arguments for a

downward departure and/or variance, as well as the statutory factors set forth in 18

U.S.C. § 3553(a), the District Court sentenced Dickey to 64 months imprisonment on

each count, to run concurrently.

       Dickey appealed.

II.    Jurisdiction and Standard of Review

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

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

       We review a district court’s legal conclusions regarding the United States

Sentencing Guidelines de novo, its application of the Guidelines to the facts for abuse of

discretion, and its factual findings for clear error. United States v. Blackmon, 557 F.3d

113, 118 (3d Cir. 2009).

III.   Discussion

       A.     Fair Sentencing Act

       Dickey contends that the District Court erred in finding that the FSA did not apply

to him. We recently held that the FSA requires application of the new mandatory

minimum sentencing provisions to all defendants sentenced on or after August 3, 2010,

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regardless of when the offense conduct occurred. United States v. Dixon, 648 F.3d 195,

203 (3d Cir. 2011). Thus, the government now concedes—as it must—that the FSA

applies to Dickey, who committed his drug offenses before August 3, 2010, but was

sentenced after that date.

       The government contends, however, that the District Court’s failure to apply the

FSA when sentencing Dickey was harmless error that did not affect his sentence. In

particular, the government argues that the District Court imposed the 64-month sentence

based on consideration of the 18 U.S.C. § 3553(a) factors, without regard to the 60-month

mandatory minimum, and thus Dickey suffered no prejudice.

       The use of an erroneous Guidelines range typically requires reversal, unless the

miscalculation is harmless. United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008).

The government, as the proponent of the sentence, bears the burden of persuading us that

the District Court would have imposed the same sentence absent the error. Id. at 215.

We will remand for resentencing unless we conclude on the record as a whole that it is

clear and unambiguous that the District Court would have imposed the same sentence

under the correct Guidelines range. Id. at 215-16. It is the District Court’s reasoning,

and not merely an overlap between the incorrect and correct Guidelines range, that is

determinative. Id. at 216.

       The 64-month sentence the District Court imposed falls within both the incorrect

Guidelines range of 60 to 71 months and the correct Guidelines range of 57 to 71 months.

We cannot be sure, however, that on the record as a whole the District Court would have

imposed the same sentence had it concluded that the FSA did apply to Dickey and thus

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that the 60-month mandatory minimum did not. After carefully weighing the 18 U.S.C.

§ 3553(a) factors, the District Court explained that it “had chosen to remain within the

guidelines and impose a sentence at the lower to middle end of the guideline.” Because

the low end of the correct Guidelines range is three months less than the range the

District Court used, we cannot conclude that the erroneous Guidelines calculation was

harmless. We will, therefore, vacate Dickey’s sentence and remand the case to the

District Court for resentencing.

       B.       Motion for Downward Variance

       Dickey also argues that the District Court failed to rule on his motion for a

downward variance based upon the sentencing disparity between crack cocaine and

powder cocaine. Because we will vacate the sentence entered by the District Court and

remand for resentencing based on Dickey’s FSA argument, we do not reach this issue.

IV.    Conclusion

       For the foregoing reasons, we will vacate the judgment of sentence and remand for

resentencing.




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