                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2009

USA v. Russell
Precedential or Non-Precedential: Precedential

Docket No. 07-4731




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                                           PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       _____________

                           No. 07-4731
                          _____________

                 UNITED STATES OF AMERICA

                                  v.

                CLEOTIS EUGENE RUSSELL, JR.,

                                Appellant
                         _______________

           On Appeal from the United States District Court
              for the Western District of Pennsylvania
                     (Criminal No. 06-cr-00072)
            District Judge: Honorable Maurice B. Cohill
                          ______________

             Submitted Under Third Circuit LAR 34.1(a)
                          January 9, 2009
                        ________________


Before: CHAGARES, HARDIMAN Circuit Judges, and ELLIS,
                Senior District Judge.*


                       (Filed: April 23, 2009)
                          ______________




       *
           The Honorable T. S. Ellis, III, Senior District Judge,
United States District Court for the Eastern District of Virginia,
sitting by designation.
LISA B. FREELAND
Federal Public Defender
RENEE PIETROPAOLO
Assistant Federal Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
       Counsel for Appellant

MARY BETH BUCHANAN
ROBERT L. EBERHARDT
United States Attorneys
DONOVAN COCAS
Assistant United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee

                         ______________

                   OPINION OF THE COURT
                       ______________


ELLIS, Senior District Judge.

       Cleotis Eugene Russell, Jr. appeals his 87-month sentence
following a guilty plea, arguing (i) that the District Court erred in
concluding it was barred from categorically rejecting the
Sentencing Guidelines’ crack-powder cocaine differential on policy
grounds; (ii) that the District Court erred in giving the Sentencing
Guidelines presumptive weight; (iii) that Russell’s 87-month
sentence is substantively unreasonable; and (iv) that the District
Court erred in including a misdemeanor marijuana possession
conviction in Russell’s criminal history calculation. For the reasons
stated here, we vacate and remand for resentencing.

                                 I.

       The essential facts are easily summarized and are not in

                                 2
dispute.
       On August 21, 2007, Russell pled guilty to four counts of
possession with intent to distribute five grams or more of cocaine
base, commonly known as “crack cocaine,” in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii). The presentence investigation
report (PSR) calculated Russell’s total offense level as 27 and his
criminal history category as III, resulting in an advisory Guidelines
range of 87 to 108 months.

        Prior to sentencing, Russell filed a sentencing memorandum
urging imposition of a 60-month sentence, the statutory mandatory
minimum. Specifically, Russell sought a variance under 18 U.S.C.
§ 3553(a), on the ground, inter alia, that the Guidelines’ 70-to-1
powder-to-crack cocaine ratio for his base offense level—one of
the highest such ratios for any base offense level—failed to reflect
the seriousness of his offense or to promote respect for the law. In
this regard, Russell noted that “if [his] guidelines were calculated
using a 25-to-1” ratio, the bottom end of his advisory Guidelines
range would be 60 months. 1 Accordingly, given the disparity
between the different powder-to-crack ratios for different base
offense levels, Russell argued that an advisory guideline range in
his case would be “irrational and unreasonable” and that the
District Court should exercise its § 3553(a) discretion to impose a
60-month sentence.

        At the November 28, 2007, sentencing hearing, Russell
reiterated his request for a variance, arguing that the 60-month
mandatory minimum sentence was appropriate, inter alia, (i)
because the calculation of base offense levels using the “varying



       1
          Specifically, Russell argued that a 25-to-1 ratio would
result in an advisory Guidelines range of either 60 to 71 months
(with a category III criminal history) or 60 to 63 months (with a
category II criminal history). Russell provided both calculations
because he also sought a downward departure, pursuant to U.S.S.G.
§ 4A1.3(b)(1), to criminal history category II, on the basis that
category III substantially overrepresented the seriousness of his
criminal history. The District Court rejected that argument, and
Russell has not appealed that decision.

                                 3
crack[-]powder ratios” was not a “rational way to treat the
differences between crack cocaine and powdered cocaine[,]” (ii)
because Russell had not previously been incarcerated, and (iii)
because the instant offense did not involve weapons or violence.

        The District Court rejected Russell’s request for a variance,
holding that “in this case” it was appropriate to look to the advisory
Guidelines range of 87 to 108 months. During the course of its
ruling, the District Court cited United States v. Ricks, 494 F.3d 394
(3d Cir. 2007), stating that “in Ricks the Third Circuit held that the
district courts may not categorically reject the crack/powdered
cocaine differential as a matter of policy” and that “to the extent
district courts may consider the crack/powder cocaine differential,
they should not do so by creating a new ratio altogether.” The
District Court went on to observe as follows:

       But I think the [Third Circuit is] telling us the
       guidelines are still important; and I’m one of the
       judges who didn’t ever like the guidelines from the
       time they were promulgated. I always did — I
       appreciated them and felt that it did serve to give
       some consistency to the — to the various sentences
       which are handed down by federal courts across the
       country; so I appreciated them and rarely do I depart
       from them, either in one direction or the other
       direction.

Following allocution, the District Court imposed a 87-month
sentence, consistent with the bottom end of the advisory Guidelines
range.

       In addition, the PSR assessed one criminal history point for
a 2003 misdemeanor marijuana possession conviction, without
which Russell’s criminal history would have been category II and
his advisory Guidelines range 78 to 97 months. Russell did not
object to inclusion of the conviction before or during the course of
his sentencing, objecting instead for the first time on appeal.

                                 II.



                                  4
        We exercise appellate jurisdiction over Russell’s claims of
sentencing error under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Our standard of review differs based on whether the alleged
sentencing error was raised below. If so, we review for abuse of
discretion; if not, we review for plain error. See United States v.
Lloyd, 469 F.3d 319, 320 (3d Cir. 2006).

        Where we review for abuse of discretion, “our role is two-
fold.” United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008).
First, we must “ensure that the district court committed no
significant procedural error in arriving at its decision[.]” Id.
Second, “[i]f we determine that the district court has committed no
significant procedural error, we then review the substantive
reasonableness of the sentence[.]” Id. at 218. With respect to the
first inquiry, a district court commits significant procedural error
by, inter alia,

       failing to calculate (or improperly calculating) the
       Guidelines range, treating the Guidelines as
       mandatory, failing to consider the § 3553(a) factors,
       selecting a sentence based on clearly erroneous facts,
       or failing to adequately explain the chosen
       sentence[.]

Gall v. United States, 128 S.Ct. 586, 597 (2007), quoted in Wise,
515 F.3d at 217. Of course, “we do not defer to a district court
when the asserted procedural error is purely legal,” and “a district
court will be held to have abused its discretion if its decision was
based on . . . an erroneous legal conclusion.” Wise, 515 F.3d at 217
(citing Koon v. United States, 518 U.S. 81, 100 (1996) (“A district
court by definition abuses its discretion when it makes an error of
law.”)). For example, we will “vacate[] a defendant’s sentence and
remand[] for resentencing when the district court’s remarks
indicate[] that it believed it was bound to follow the Guidelines for
crack offenses.” Id. at 222.

       Where we review for plain error, we have described the
analysis as follows:

       There must be an error that is plain and that affects

                                 5
       substantial rights. The deviation from a legal rule is
       error, and an error is plain if it is clear or obvious. In
       most cases, an error affects substantial rights if it is
       prejudicial, i.e., affected the outcome of the district
       court proceedings. . . . We will exercise our
       discretion and vacate the sentence if the plain error
       affecting substantial rights also seriously affects the
       fairness, integrity, or public reputation of judicial
       proceedings.

United States v. Evans, 155 F.3d 245, 251 (3d Cir. 1998) (internal
quotations and citations omitted), quoted in United States v.
Voelker, 489 F.3d 139, 153–54 (3d Cir. 2007).

       With these principles in mind, we turn to Russell’s
allegations of sentencing error.

                                  III.

       Russell’s first argument, distilled to its essence, is that two
Supreme Court cases decided after his sentencing—Kimbrough v.
United States, 128 S. Ct. 558 (2007), and Spears v. United States,
129 S. Ct. 840 (2009)—make clear that district courts may
categorically reject the Sentencing Guidelines’ crack-powder
cocaine differential on policy grounds, and that insofar as the
District Court here cited our contrary holding in Ricks at
sentencing, Russell’s sentence was based on an erroneous legal
conclusion and should be vacated and remanded for resentencing.

        We agree with Russell. Specifically, it is clear that the
Supreme Court expressly held in Kimbrough and Spears that a
district court may categorically reject the Guidelines’ crack-powder
cocaine differential as a matter of policy. See Spears, 129 S. Ct. at
843–44 (“[D]istrict courts are entitled to reject and vary
categorically from the crack-cocaine Guidelines based on a policy
disagreement with those Guidelines.”); Kimbrough, 128 S. Ct. at
575. Moreover, Spears clearly held that district courts “also possess
the power to apply a different ratio which, in [the district court’s]
judgment, corrects the disparity.” Spears, 129 S. Ct. at 843. Thus,
our holding in Ricks “that district courts may not categorically

                                   6
reject the [crack-powder cocaine] ratio” is no longer good law.
Ricks, 494 F.3d at 401. Indeed, the Supreme Court in Spears
effectively overruled Ricks when it explicitly rejected the approach
we set forth in United States v. Gunter, 527 F.3d 282 (3d Cir.
2008), where we relied on Ricks in holding that a “district court
cannot categorically disagree with the crack-to-powder sentencing
disparity.” Id. at 286 (citing Ricks, 494 F.3d at 402–03), abrogated
by Spears, 129 S. Ct. at 845 (holding the “error of . . . [Gunter]
evident”). Accordingly, because Ricks is no longer good law, the
District Court’s statement at sentencing regarding Ricks, while an
accurate statement of our then-existing precedent, is no longer
correct.

        This does not end our inquiry, however, as the parties
devote substantial effort to the appropriate standard of review for
determining whether Kimbrough and Spears warrant remanding
this case. In the end, we need not resolve the parties’ dispute in this
regard,2 as we find the record supports a remand here under either
standard. Indeed, under an abuse of discretion standard, it is clear
that the District Court’s conclusion that it could not reject the
crack-powder cocaine differential on policy grounds was an
erroneous legal conclusion in light of Kimbrough and Spears; thus,
it was a significant procedural error that warrants remand for
resentencing. But even applying the stricter plain error standard, we
find it appropriate to remand this case for resentencing. In this
respect, we find that the District Court’s statements regarding Ricks
constitute error and that the error is clear in light of Kimbrough and
Spears. Further, we find that the clear error affected Russell’s



       2
         On the one hand, the record reflects that Russell raised the
crack-powder cocaine disparity both in his sentencing
memorandum and during the sentencing, even going so far as to
suggest that a 25-to-1 ratio would result in a sentencing range
encompassing the 60-month mandatory minimum sentence that he
clearly urged the district court impose on him. On the other hand,
the record also reflects that, consistent with our holding in Ricks,
Russell partnered his arguments with respect to the crack-powder
cocaine disparity with arguments about his individual
circumstances.

                                  7
substantial rights, particularly given both his efforts to argue that
the crack-powder cocaine disparity justified a variant sentence and
the District Court’s reliance on Ricks in rejecting those efforts.
Accordingly, we vacate Russell’s sentence and remand for
resentencing, as we find that giving the District Court an
opportunity to resentence Russell in light of its clarified authority
under Kimbrough and Spears ensures the fairness, integrity, and
public reputation of Russell’s sentencing proceedings.3

                                IV.

      Although we vacate and remand for resentencing in light of
the District Court’s reliance on Ricks, we nonetheless briefly
address Russell’s remaining arguments to provide the District
Court with guidance on remand.




       3
         We note that our approach here is consistent with the well-
reasoned approaches of several of our sister circuits. See, e.g.,
United States v. Johnson, 553 F.3d 990, 996 (6th Cir. 2009)
(vacating and remanding “so that the district court may impose a
sentence with full awareness of its authority” under Spears); United
States v. Bush, 523 F.3d 727, 729–730 (7th Cir. 2008) (vacating
and remanding for resentencing where district court’s “conclusion
was consistent with [the Seventh Circuit’s pre-Kimbrough] position
that the court was prohibited from reducing [a] sentence solely on
the basis of opposition to the [crack-powder cocaine] ratio as a
matter of policy”). Cf. United States v. Regalado, 518 F.3d 143,
148–150 (2d Cir. 2008) (reviewing for plain error and remanding
“to give the district court an opportunity to indicate whether it
would have” categorically rejected the crack-powder cocaine ratio
on policy grounds because “we are unable to tell whether the likely
procedural error . . . affected substantial rights and affected the
fairness, integrity, or public reputation of judicial proceedings”);
United States v. Taylor, 520 F.3d 746, 747–49 (7th Cir. 2008)
(reviewing for plain error and remanding in light of Kimbrough for
district court to first address defendant’s pending 18 U.S.C. §
3582(c)(2) motion and only then to determine “whether [the district
court] is minded to resentence the defendant under Kimbrough”).

                                 8
        We find Russell’s second argument—that the District Court
incorrectly gave the Guidelines presumptive weight—is without
merit. Specifically, Russell claims that the District Court’s
statement that it “rarely” sentences outside the Guidelines is
tantamount to an admission that the District Court gave the
Guidelines presumptive weight. In this regard, Russell both
misapprehends the import of the District Court’s statement and
takes that statement out of context. See, e.g., United States v.
Severino, 454 F.3d 206, 214 (3d Cir. 2006) (“Isolating certain
statements of the court to suggest that the court somehow felt
obligated to follow the Guidelines ignores the context of those
statements.”). Specifically, the District Court’s observation that it
rarely sentences outside the advisory range is not equivalent to
giving that range presumptive weight; it merely suggests that, on
most occasions, the District Court agrees that the advisory range
provides the appropriate sentence. Moreover, at the outset of the
sentencing hearing, the District Court observed that “the
[S]entencing [G]uidelines are to be considered advisory only” and
that a court must consider the relevant § 3553(a) factors and
impose a sentence “regardless of whether or not it varies from the
sentence calculated under the [G]uidelines.” In sum, based on our
review of the record as a whole, it is pellucidly clear that the
District Court did not give the Guidelines presumptive weight;
rather, the record makes clear that the District Court appropriately
understood the Guidelines’ advisory nature.

                                 V.

         Next, we find it unnecessary to address Russell’s third
argument—that the 87-month sentence imposed here was
substantively unreasonable—prior to affording the District Court
an opportunity to resentence in light of its authority under
Kimbrough and Spears. See United States v. Washington, 549 F.3d
905, 920 n. 21 (3d Cir. 2008) (“Because we have found procedural
error . . . and are remanding for resentencing, we need not evaluate
the substantive reasonableness of the sentence.”). In other words,
because the District Court may impose a different sentence on
remand in light of Kimbrough and Spears, we need not address the
overall substantive reasonableness of the sentence we vacate here.



                                 9
                                 VI.

       Russell’s final argument is that the District Court erred by
assessing one criminal history point for Russell’s 2003
misdemeanor marijuana possession conviction. Because Russell
did not raise this argument at sentencing, we review the District
Court’s criminal history calculation for plain error.

         Russell argues that the District Court should have excluded
his misdemeanor marijuana possession conviction pursuant to
U.S.S.G. § 4A1.2(c)(2), which provides that certain listed offenses
“and offenses similar to them . . . are never counted” in a
defendant’s criminal history calculation. U.S.S.G. § 4A1.2(c)(2).
Russell does not argue—nor could he—that misdemeanor
marijuana possession is listed in § 4A1.2(c)(2). Rather, he argues
that the District Court should have excluded his conviction because
it is “similar to” a listed offense, namely public intoxication.

         We do not agree. Specifically, we find that the District
Court properly assessed one criminal history point for Russell’s
2003 marijuana possession conviction. In this regard, we observe
that the applicable Guidelines commentary directs district courts to
determine whether a conviction is “similar to” a listed offense by
“us[ing] a common sense approach that includes consideration of
relevant factors” comparing, inter alia, the offenses’ elements,
available punishments, perceived seriousness, levels of culpability,
and tendencies to predict recurring criminal conduct. See U.S.S.G.
§ 4A1.2 cmt. n.12(A). Put succinctly, we find that neither common
sense, nor an appropriate weighing of the relevant factors, supports
a finding that marijuana possession is similar to public intoxication.
Although the parties devote substantial effort in their briefs to
debating and weighing the various factors, we see no reason to do
so here. Rather, we simply note that Russell has cited no authority
holding that marijuana possession is “similar to” public
intoxication under § 4A1.2(c)(2), nor have we found any such
authority. Of course, this is not surprising, as Russell’s argument,
if true, would lead to an absurd result: no misdemeanor conviction
for possession of a small amount of marijuana would ever count in
a defendant’s criminal history calculation. Thus, applying the
Guidelines’ “common sense approach” to interpreting §

                                 10
4A1.2(c)(2), we reject Russell’s argument. Accordingly, because
the District Court properly assessed one criminal history point for
Russell’s 2003 marijuana possession conviction, we find no
error—plain or otherwise—in the District Court’s criminal history
calculation.

                               VII.

        For the foregoing reasons, we vacate the judgment of the
District Court and remand for a new sentencing hearing consistent
with this opinion. Of course, we emphasize that our disposition
should not be read as indicating any view as to the appropriateness
of the sentence imposed. Thus, the District Court, on remand,
retains the discretion to reimpose the same sentence or to select an
alternate one.




                                11
