                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                     No. 11-3836
                                   ______________

                           UNITED STATES OF AMERICA

                                           v.

                                  JERMAINE LOUIS
                                     a/k/a Big J,

                                              Appellant
                                   ______________

                    On Appeal from the United States District Court
                           for the District of New Jersey
                         (D.C. Crim. No. 3-10-00470-001)
                     Honorable Peter G. Sheridan, District Judge
                                  ______________

                      Submitted under Third Circuit LAR 34.1(a)
                                  October 2, 2012

          BEFORE: FUENTES, FISHER and GREENBERG, Circuit Judges

                                (Filed: October 3, 2012)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on an appeal from the sentence imposed in

a judgment of conviction and sentence entered on October 7, 2011, on the basis of the

defendant Jermaine Louis’s plea of guilty to an indictment charging him under 18 U.S.C.
§ 922(g)(1) with unlawfully possessing a firearm after having been convicted of a crime

punishable by imprisonment for a term exceeding one year. Based on Louis’s offense

level and his criminal history category and taking into account the applicable statutory

maximum sentence allowable, the District Court calculated Louis’s custodial guidelines

range as 110 to 120 months. The Court, however, varied downwards from that range and

imposed a custodial sentence of 98 months to be followed by a three-year term of

supervised release. This appeal followed.

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

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Louis views the issue on

this appeal as involving procedural unreasonableness. He thus contends that we review

the sentence for an abuse of discretion, citing Gall v. United States, 552 U.S. 38, 51, 128

S.Ct. 586, 597 (2007), and the government agrees that he correctly sets forth the standard

of review.

       After hearing lengthy oral argument, the District Court gave the following

explanation when it imposed the sentence.

              So, at any rate, the concern that I have is Mr. Louis’ background. It
       seems that, as [defense counsel] says, he had a deplorable childhood; he
       was living in a car; his mother was a crack addict; he can only read a little
       English, so he has very few skills in terms of being able to read and write;
       and his father had no real significant involvement with him during his
       youthful years, and things of that nature. Which the extent of it in this case
       seems to be very pervasive in Mr. Louis’ personality. And it seems that
       that should be weighed in to the sentencing here in some fashion.

             Also, one of the [section] 3553 factors is that we weigh the
       circumstances of the offense, and the history and characteristics of the
       defendant. So, although we’ve considered under the sentencing guidelines


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      to make Mr. Louis a criminal history six, that six doesn’t really reflect the
      other part of his personality traits or how he was brought up.

              So, the Court thinks that needs to be somehow weighed in on this.
      Based on that, I’m going to vary downward from a 25, level six, to a 23,
      level six, to consider Mr. Louis’ background.

             The other factors we consider when we sentence a defendant are
      both his nature and circumstances of the offense, the characteristics of the
      defendant; and the sentence must and in this case definitely needs to be
      serious, because he was in possession of a weapon and he was a prior felon;
      and the sentence must respect the law; it must provide just punishment; and
      it must provide adequate deterrence, and as well as protect the public from
      further crimes of the defendant.

             So, in this case we have a possession of a weapon, which is very
      serious. And it seems that Mr. Louis was an ongoing criminal, a recidivist
      as [government counsel] called him, and that needs to be considered as
      well. So, a significant punishment must be entered in this case.

             So, for those reasons, and pursuant to the Sentencing Reform Act,
      it’s my judgment that Mr. Louis is hereby committed to the custody of the
      Bureau of Prisons, for a term of 98 months. And he shall be placed on
      supervised release for a term of three years.

App. at 145-46.

      Louis summarized his contentions in his opening brief on this appeal as follows.

             Jermaine Louis argued [in the District Court] that the firearms
      Guideline did not reflect an exercise of the United States Sentencing
      Commission’s institutional expertise, resulting in an excessive sentencing
      range in his case. He made the argument in writing and at sentencing. He
      amply supported the argument. And he explained why the flaws in the
      Guideline mattered in his particular case. The District Court listened to the
      argument, but failed to acknowledge it, much less express any meaningful
      consideration of it.

              This Court [of Appeals] has repeatedly stated that sentencing courts
      need not independently analyze the history of a Guideline to ensure that it
      reflects the Sentencing Commission’s expertise. At the same time,
      however, this Court requires a sentencing court to meaningfully consider all
      colorable challenges to a Guideline sentence. A fair reading of this Court’s

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       precedent, therefore, reveals that this Court has not exempted arguments
       about the Guidelines themselves from the meaningful consideration and
       response requirement where a defendant challenges the applicability of the
       Guidelines under the specific circumstances of his case. By remaining
       silent in the face of such an argument, the District Court abdicated its
       responsibility to meaningfully consider Mr. Louis’s challenge. The District
       Court’s silence constitutes procedural error requiring reversal and remand.

Appellant’s br. at 15.

       The government summarized its answer to Louis’s argument as follows:

               Despite receiving a sentence below the Guidelines range, Louis filed
       a 41-page brief to this Court, arguing solely that the District Court
       procedurally erred by not delving into the Sentencing Commission’s
       rationale for amending (with Congressional approval) a Guideline provision
       over two decades ago. But over two years ago, this Court definitely held
       that sentencing courts need not engage in such analysis, United States v.
       Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009), and this Court (and others)
       have repeatedly re-affirmed that holding in both precedential and non-
       precedential opinions. Despite the central importance of Lopez-Reyes to
       this appeal, Louis discusses it only briefly, and does not do so until page 36
       of his brief. Because Lopez-Reyes controls, this Court should reject Louis’
       challenge, reaffirm Lopez-Reyes (yet again), and find that the District
       Court did not abuse its discretion by imposing the below-Guidelines
       sentence in this case.

Appellee’s br. at 5 (emphasis in original).

       It became evident from the government’s argument in its brief that in its view

Lopez-Reyes is a critical case to be considered on this appeal. It is thus not surprising

that in his summary of his argument in his reply brief Louis set forth that:

              The District Court failed to respond to Mr. Louis’s argument that an
       amendment to the firearms guideline compounded the impact of his prior
       convictions and resulted in an excessive sentencing range for him. The
       government does not claim otherwise. A straightforward application of the
       well-established principle that district courts must respond to colorable
       arguments compels this Court to vacate the sentence.



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              Instead, the government argues that the Court should affirm the
       sentence, based on the statement in United States v. Lopez-Reyes, 589 F.3d
       667, 671 (3d Cir. 2009), cert. denied, 130 S.Ct. 2362 (2010), that
       sentencing courts need not engage in extensive analysis of the development
       of a guideline in order to satisfy the meaningful consideration and response
       requirement. That proposition is at odds with United States Supreme Court
       and Third Circuit precedent, does a disservice to the evolution of the
       guidelines and ability of appellate courts to review a sentence, and is
       fundamentally unfair to a criminal defendant entitled to an individualized
       sentence.

               The record below presents this Court with an opportunity to reiterate
       that the argument that a guideline does not produce a fair sentence in an
       individual case is (1) subject to the meaningful consideration and response
       requirement, (2) important in an advisory guidelines system, and (3)
       appropriately directed to district courts.

Appellant’s reply br. at 1-2.

       Although the sentencing guidelines since United States v. Booker, 543 U.S. 220,

125 S.Ct.738 (2005) have been advisory only, the district courts nevertheless start the

sentencing calculations by calculating a defendant’s guideline range and ruling on any

motion for departures. They then impose the sentence after taking into account the

statutory sentencing factors in 18 U.S.C. § 3553(a). See United States v. Merced, 603

F.3d 203, 215 (3d Cir. 2010). Accordingly, there is no doubt that though only advisory,

the guidelines remain important after Booker and establish a starting point for a court to

consider when imposing a sentence.

       After considering the parties’ arguments, we reject Louis’s appeal. Though Louis

concedes that sentencing courts need not independently analyze the history of a guideline

to ensure that it reflects the Sentencing Commission’s expertise, he correctly points out

that a court should consider all colorable challenges to a guidelines sentence. He then


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goes on to contend that a court may entertain challenges to the guidelines themselves and

that a court should respond when a defendant “challenges the applicability of the

Guidelines under the specific circumstances of his case.” Appellant’s br. at 15. In point

of fact, however, though the District Court in this case did not characterize its sentencing

considerations as entertaining a challenge to the guidelines, by varying downwards from

the guidelines range and sentencing below its bottom level, the Court did what Louis

wanted. It considered the applicability of the guidelines to the specific circumstances of

his case and then imposed an individualized sentence. Indeed, it appears that Louis’s

argument, though carefully and fully presented, is more about nomenclature than

substance, as there is no meaningful distinction between a court saying that it accepts a

challenge to a guideline and a court indicating, as the District Court did here, that in

sentencing it is varying from a guideline. Finally, we note that our examination of the

presentence report hardly suggests that the Court abused its discretion in imposing the

sentence, as the sentence seems to have been quite appropriate.

       The judgment of conviction and sentence entered on October 7, 2011, will be

affirmed.




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