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


4-21-2008

USA v. John Doe
Precedential or Non-Precedential: Precedential

Docket No. 06-5205




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Recommended Citation
"USA v. John Doe" (2008). 2008 Decisions. Paper 1289.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1289


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                                                                 NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                  Nos. 04-1482, 04-1483


                            UNITED STATES OF AMERICA

                                            v.

                                       JOHN DOE,
                                             Appellant




                      On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                      (D.C. Crim. Nos. 01-cr-00565-2, 01-cr-00566-2)
                        District Judge: Honorable Berle M. Schiller




                        Submitted Under Third Circuit LAR 34.1(a)
                                     April 18, 2008

           Before: SLOVITER, JORDAN, and ALARCÓN,* Circuit Judges

                                   Filed: April 21, 2008
                                          ______

                                        OPINION

SLOVITER, Circuit Judge.

      Appellant, John Doe, who pled guilty to participation in two drug conspiracies,


                  *
                  Hon. Arthur L. Alarcón, Senior Judge, United States Court
           of Appeals for the Ninth Circuit, sitting by designation.
seeks review of the District Court’s order sentencing him to two concurrent 100 month

prison sentences. He argues that this sentence created an unwarranted sentencing

disparity, that we should not enforce his waiver of appeal, and that he was prejudiced

because the District Court applied the advisory guidelines as mandatory. In response to

the last of John Doe’s arguments, the government agrees that this matter should be

remanded for resentencing.

                                             I.

       In 2001, John Doe was indicted with respect to two separate conspiracies to traffic

marijuana in excess of 1,000 kilograms and methamphetamine in excess of 14 kilograms.

The conspiracies involved five other men, three of whom were indicted in connection

with both conspiracies. Carlos Rivera was only indicted in connection with the marijuana

conspiracy. John Doe pled guilty to the methamphetamine conspiracy charges in April

2002, and entered into a cooperation plea agreement, which contained a waiver of appeal,

with regard to the marijuana conspiracy. The government promised to consolidate the

two cases if John Doe fulfilled his obligations under the agreement. At the 2004

sentencing, the cases were consolidated and the combined drug calculations placed John

Doe at a base offense level of 36 and a criminal history level of II under the Guidelines,

which, after a three-level adjustment for acceptance of responsibility, resulted in a

sentencing range of 151 to 188 months. The statutory mandatory minimum sentence was

ten years in each case.



                                              2
       John Doe sought a downward departure from the Guidelines and the statutory

minimum in consideration of his cooperation and assistance in the prosecution of Rivera

(the leader of the marijuana conspiracy). The government moved pursuant to section

5K1.1 for a downward departure from the Guidelines. Accordingly, the District Court

departed downward from the Guidelines and imposed a sentence of 100 months for each

conspiracy charge, to run concurrently.

       John Doe filed an appeal and the government responded with a motion to dismiss

the appeal of the marijuana sentence in light of the appellate waiver. The motion was

referred to the merits panel and is addressed below.

                                            II.

       In response to the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), this court held that when the Sentencing Guidelines are treated as mandatory

by the District Court, prejudice is presumed and the matter should be remanded for

resentencing. United States v. Davis, 407 F.3d 162, 164-65 (3d Cir. 2005) (en banc).

Because in this case the District Court departed downward from mandatory rather than

advisory Guidelines, resentencing is required in the methamphetamine case under our

Davis precedent. Id.

       John Doe signed an appellate waiver in the marijuana case. He argues the

government should not be entitled to invoke the appellate waiver on the marijuana

conspiracy charge because his waiver was not knowing and voluntary. We need not



                                             3
consider his argument because the government has withdrawn its motion to enforce the

waiver in light of the interrelated nature of the methamphetamine and marijuana cases.1

       John Doe further argues that remand is necessary because there was a disparity in

sentencing. Specifically, he cites a disparity between his sentence and that of a co-

defendant, Rivera, whom he characterizes as the leader of the conspiracies. Of

importance, however, is the fact that Rivera led only the marijuana conspiracy, and was

not charged in connection with the methamphetamine conspiracy. John Doe and

Alejandro Hernandez were charged in connection with the methamphetamine conspiracy.

Moreover, methamphetamine offenses are treated more harshly than marijuana related

offenses. See 21 U.S.C. § 841(b)(1) (treating one gram of methamphetamine as harshly

as twenty kilograms of marijuana, a ratio of 20,000 to 1). However, because Davis

requires resentencing under the advisory Sentencing Guidelines, John Doe will have the

opportunity to make the disparity argument before the District Court at resentencing, and

we need not reach the disparity argument at this time.




                   1
                      In United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.
            2007), we held that we have subject matter jurisdiction over a
            defendant’s appeal notwithstanding defendant’s waiver. We stated
            further that we will ordinarily not exercise that jurisdiction, but the
            government’s withdrawal of its motion to dismiss provides
            adequate reason for us to accept jurisdiction over John Doe’s
            appeal.

                                              4
                                           III.

      For the reasons set forth, we will remand these cases to the District Court for

resentencing.




                                            5
