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


10-22-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4103




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                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-4103


                          UNITED STATES OF AMERICA

                                           v.

                                BREMEN MIRANDA

                                   Bremen Miranda,
                                      a/k/a Ace

                                                Appellant


                    On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            (D.C. Civil No. 06-cr-00052-7)
                       District Judge: Hon. Thomas I. Vanaskie


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 20, 2008

                   BEFORE: SMITH and COWEN , Circuit Judges
                        and THOMPSON*, District Judge

                               (Filed: October 22, 2008)




*Honorable Anne E. Thompson, Senior United States District Judge for the District of
New Jersey, sitting by designation.
                                         OPINION


COWEN, Circuit Judge.

       Appellant Bremen Miranda appeals from his criminal sentence entered by the

United States District Court for the Middle District of Pennsylvania. We will affirm.

                                             I.

       Miranda pled guilty to the charge of conspiracy to distribute and possess with

intent to distribute crack cocaine in violation of 21 U.S.C. § 846. The parties agreed to

recommend a finding that the quantity of crack was between 150 and 500 grams.

Miranda’s sentence therefore was subject to a statutory maximum term of 20 years (or

240 months). The presentence report calculated a Guideline sentencing range of 262 to

327 months. Because of the statutory maximum, his effective “range” was 240 months.

       On October 10, 2007, Miranda appeared before the District Court for his

sentencing hearing. After reciting the Guideline calculations, the District Court stated its

intention of “taking into consideration the proposed changes to the guidelines that are to

go into effect November 1st.” (App43.) The District Court was thereby referring to the

upcoming changes in the Guidelines with respect to crack cocaine sentencing.

Accordingly, “the offense level in this matter would be reduced to 35, making an advisory

guideline range of 210 to 240 months, again, capped at the statutory maximum of 20

years.” (Id.) Counsel for Miranda then argued in some detail for an even lesser sentence

                                             2
of 12 to 13 years. Pointing out that the Guideline range was now advisory, he claimed

that “this is a classic example of true overrepresentation” of the seriousness of his client’s

crime. (App45.) The defense attorney also noted that “Congress is considering it to a

degree, because I have heard, as you have mentioned and when this proceeding started,

about some departures – some lessening of the severity of these crimes.” (App45-

App46.)

       The District Court then made its sentencing decision. Initially, it summarized the

18 U.S.C. § 3553(a) sentencing factors. While noting the harshness of the sentence and

expressing some sympathy for the 26-year old defendant, the District Court emphasized

that Miranda was the leader and recruiter of a substantial drug trafficking operation. He

engaged in such criminal conduct even though he was then serving a suspended sentence

for a prior offense. The District Court also observed that firearms and violence were

involved in the scheme, “with a person being shot that was part of this conspiracy.”

(App49.) It therefore expressed a desire to impose a longer sentence on Miranda than the

sentences received by his lower-ranking co-conspirators. According to the District Court,

“[m]uch has been written about the disparity between crack and powder cocaine and I

have taken that into consideration in saying that I would follow the range that would be in

effect come November 1st.” (App50.) Noting that Congress itself had made a “policy

choice” to impose a higher sentence given the “very dangerous” nature of crack

distribution, the District Court stated:



                                              3
       . . . . I have tried to consider all these factors that go into making a
       sentencing decision, recognizing that I have only an advisory guideline
       range, but it is an advisory one, so I would have to take that into
       consideration, and having weighed all of the facts in this matter, I believe
       that a sentence of 210 months is the appropriate sentence in this case. It’s
       the minimum number of months in that advisory guideline range, but you
       headed up a substantial organization.

(App51.)

       The District Court then reiterated its reasoning after formally imposing the

sentence:

       As I indicated, I have adopted the Pre-sentence Investigation Report, its
       factual findings and guideline application that called for an advisory
       guideline range of 240 months. I have exercised my discretion to impose a
       sentence of 30 months below the advisory guideline range, based upon my
       belief that the proposed changes to the guidelines will take effect on
       November 1st, and it would not be fair in these circumstances to not apply
       those changes in your particular case.

(App53.)

       The District Court finally addressed Miranda personally. Recognizing that he was

a young man and that it was a “horrible sentence,” the District Court emphasized that it

could not excuse the behavior of “the leader of the organization.” (Id.) According to the

District Court, “these drugs” ruin lives, and this “stuff” could only be stopped by

imposing harsh sentences. (App54.)

       Miranda filed a timely notice of appeal. Miranda challenges only the length of his

sentence, claiming that it was harsh, excessive, and unreasonable.

                                             II.



                                             4
       Miranda contends that his 210-month sentence should be overturned because

neither the District Court nor his sentencing counsel considered our ruling in United

States v. Gunter, 462 F.3d 237 (3d Cir. 2006).1 According to Miranda, we “recognized

that a sentencing court may consider the crack versus powder disparity of 100:1 in

imposing a reasonable sentence.” (Appellant’s Br. at 11 (citation omitted).) He therefore

asserts that the District Court committed plain error by failing to consider the disparity

issue as a 18 U.S.C. § 3553(a) sentencing factor and thereby improperly treating the

Guidelines themselves as mandatory. Furthermore, Miranda’s previous attorney allegedly

provided constitutionally ineffective assistance by not arguing Gunter. We must,

however, reject Miranda’s claims of plain error and ineffectiveness of counsel as lacking

in any real merit.

       As the government thoroughly explains in its appellate brief, the District Court did

“consider the crack versus powder disparity in imposing a reasonable sentence” of 210

months. While it never mentioned Gunter itself by name, a sentencing court has no

obligation to cite a specific judicial decision. In fact, the District Court expressly

considered the issue of disparity several times at sentencing, acknowledging at one point

that “[m]uch has been written about the disparity between crack and powder cocaine.”




  1
     The District Court possessed jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Furthermore, we
generally apply an abuse of discretion standard in reviewing a criminal sentence. See,
e.g., Gall v. United States, 128 S. Ct. 586, 594 (2007).

                                               5
(App49-App50.) It even went so far as to apply proposed changes to the Guidelines

purportedly dealing with this disparity question. It accordingly relied on the proposed

amendments to reduce the range itself to 210 to 240 months and “exercised my discretion

to impose a sentence of 30 months below the advisory guideline range.” (App53.) The

District Court’s extensive ruling also included a discussion of both the specific

circumstances presented by the case itself as well as sentencing factors listed in 18 U.S.C.

§ 3553(a).

       Contrary to Miranda’s characterization, it does not appear that the District Court

would have imposed an even lower sentence but incorrectly believed it lacked the legal

power to do so. While it acknowledged the harshness of the sentence and expressed some

sympathy for Miranda, the District Court clearly indicated that “a sentence of 210 months

is the appropriate sentence in this case.” (App51 (emphasis added).) Among other

things, it specifically noted that Miranda served as the leader and recruiter of a substantial

drug operation even while free on a suspended sentence for a prior offense. Furthermore,

because the conspiracy involved violence and the use of firearms, it was appropriate for

the District Court to find that Congress’s “policy choice” regarding crack cocaine had

special relevance here. (App50.) Noting that “[w]e have to stop this stuff,” the District

Court told Miranda that “we are only going to do it by imposing sentences that are harsh.”

(App54.) Otherwise, these drugs will continue to “ruin lives,” including “those who get

caught selling.” (Id.)



                                              6
       Insofar as the District Court committed no sentencing error, Miranda’s ineffective

assistance of counsel theory must also be rejected. However, we further note that his

attorney at sentencing did appear to raise the disparity issue in his argument for a lesser

sentence. He specifically observed that “Congress is considering it to a degree, because I

have heard, as you have mentioned and when this proceeding started, about some

departures – some lessening of the severity of these crimes.” (App46.) Although the

attorney could have presented a more detailed argument with respect to disparity, he

apparently addressed the concept itself. In addition, the District Court was already well

aware of the issue of disparity, expressing its intent to reduce the Guideline range based

on the proposed changes even before defense counsel presented his sentencing theory.

Under the circumstances, the ineffectiveness claim offered on appeal lacks any merit

whatsoever.

                                             III.

       For the foregoing reasons, we will affirm the District Court’s sentence.




                                              7
