                                                   NOT PRECEDENTIAL



                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 _____________

                                  No. 11-3294
                                 _____________

                       UNITED STATES OF AMERICA

                                        v.

                          BALIR AKEEM STARKEY,

                                       Appellant
                                 _____________

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                      District Court No. 3-09-cr-00391-001
                District Judge: The Honorable James M. Munley


               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                May 18, 2012

                  Before: SMITH, and FISHER, Circuit Judges
                        and STEARNS, District Judge

                              (Filed: May 24, 2012)





 The Honorable Richard G. Stearns, United States District Judge for the United
States District Court of Massachusetts, sitting by designation.
                            _____________________

                                   OPINION
                            _____________________


STEARNS, District Judge.

      On December 13, 2007, Balir Akeem Starkey, together with his cousin and

two other men, robbed Murphy’s Jewelers in Pottsville, Pennsylvania. Starkey

provided his companions with black t-shirts (used as masks) and gloves. During

the robbery, Starkey threatened Murphy’s employees with a pistol. Starkey’s

cousin assaulted the store manager. The four men gathered up approximately

$26,000 worth of diamond rings and fled in a rented getaway car.

      Starkey was identified by FBI agents who recovered his fingerprints and

traces of his DNA from the abandoned getaway car. Confronted by the agents, he

confessed to the robbery. After negotiating a plea agreement with the government,

Starkey pled guilty to a violation of the Hobbs Act, 18 U.S.C. § 1951. He also

agreed to cooperate with the government. His assistance led to the indictment and

conviction of his cousin.

      At the August 9, 2011 sentencing hearing, citing Starkey’s substantial

assistance, the government moved for a downward departure to a sentence of 66

months. The advisory Sentencing Guidelines Range (SGR) was pegged at 84 to



                                        2
105 months.1 Starkey’s counsel joined the government’s motion. The District

Court refused to depart and sentenced Starkey to the minimum SGR term of 84

months. Starkey timely appealed his sentence. We have jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

      We review a district court’s sentencing decision for reasonableness under an

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In

assessing the reasonableness of a sentence, we must

      first ensure that the district court committed no significant procedural
      error, such as failing to calculate (or improperly calculating) the
      Guidelines range, treating the Guidelines as mandatory, failing to
      consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based
      on clearly erroneous facts, or failing to adequately explain the chosen
      sentence – including an explanation for any deviations from the
      Guidelines range.

Id. If “the district court’s sentencing decision is procedurally sound, [we] . . . then

consider the substantive reasonableness of the sentence imposed . . . .” Id. The

party challenging a sentence has the burden of demonstrating unreasonableness.

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).

      Starkey attacks his sentence as procedurally flawed, arguing that the District

Court did not adequately explain its reasoning in denying the jointly requested

downward variance.2 Because, according to Starkey, the record does not reveal an


1
  Starkey did not object to the Probation Office’s calculation of the applicable
SGR.
2
  Starkey does not challenge the substantive reasonableness of his sentence.
                                          3
explicit reason for Judge Munley’s refusal to depart, it does not reflect whether he

gave “meaningful consideration” to the factor of substantial assistance. See United

States v. Charles, 467 F.3d 828, 831 (3d Cir. 2006) (citing United States v. Cooper,

437 F.3d 324, 329 (3d Cir. 2006)).

      We read the record differently. At the outset of the hearing, Judge Munley

invited the parties to address the issue of a substantial assistance departure. After

hearing the government prosecutor’s 66-month recommendation, the more fulsome

endorsement of a variance by Starkey’s counsel, and an apology from Starkey,

Judge Munley stated that in determining an appropriate sentence he had given

consideration to “the presentence investigation report, which I have studied – Mr.

Starkey has written me a letter and – which he’s outlined his – his feeling with

regard to the matter and his remorse – and the statements by [Starkey’s counsel]

Mr. Young here this morning and Mr. Zubrod, [the] United States Attorney.” App.

78. He further said that he intended to impose a sentence that would reflect “full

consideration of all of the [§ 3553(a)] factors including the nature and seriousness

of the offense, history and characteristics of the defendant, the kinds of sentences

that are available, advisory sentencing ranges and policies prescribed by the

sentencing commission.” Id. at 79.

      Turning first to the “nature and seriousness of the offense,” Judge Munley

noted that Starkey had “brandish[ed] a firearm during the robbery while the two

                                         4
others stole the merchandise” and that “[t]he owner of business was struck in the

head and bound with duct tape.”           Id.    Next addressing “the nature and

characteristics of the defendant,” Judge Munley described Starkey’s personal and

family background, remarking that he “has served a considerable amount of time

of imprisonment since the age of 17.” Id. at 79-80.

       [His] criminal record consists of two aggravated felonies and three
       summaries and including . . . [a conviction] of robbery at the age of 17
       in 2003 and was sentenced as an adult to three and a half years to . . .
       seven years. While on parole on this offense, he committed the
       instant federal offense. . . . In 2008, that is subsequent to the time of
       this offense, he was convicted of distribution of cocaine and
       possession of a firearm.

Id. at 80.

       Judge Munley then took up the issue of a variance. After expressing his

respect for the prosecutor and defense attorney, he nonetheless denied the joint

motion. He explained:

       He – Mr. Starkey – he committed this robbery in December of 2007.
       Three or four months later in March of 2008, he was arrested for
       delivery . . . of cocaine and possession of a weapon. So for his young
       years, 25[,] he’s – he spent a considerable amount of time incarcerated
       for serious felony convictions. This fellow, Mr. Starkey, has a violent
       streak in him. When we look at his prior record, the – that prior
       robbery, . . . the report indicates that there was people involved in it.
       There was a gun brandished and a knife involved, and someone placed
       a knife at someone’s throat. And . . . the [] disorderly conducts again
       have – somebody get punched in the face and so on.

       And . . . it’s interesting to point out with that – into 2008, possession
       with intent to deliver and the firearms not to be carried without a
       license and resisting arrest charges, which – that incident police were
                                          5
      on routine patrol and they approached the defendant as he – for some
      reason, he fled on foot. And subsequently, there was some plastic
      baggies containing cocaine retrieved and also – and also a loaded 25
      caliber Phoenix arm pistol was obtained in that incident . . . . I’m very
      happy with the letter that I received from Mr. Starkey. In that letter he
      talks about his family, his – his gaining a new perspective and outlook
      on his life and how he failed to take – take time to think about the
      long term mental or emotional damage that he could have cause
      people involved in these incidents. One of the other incidents in this
      particular case was . . . Mr. Murphy at the jewelry store was bound up
      and . . . was struck in the head with what he believed was a pistol.

Id. at 80-82.

      Judge Munley concluded with the observation that Starkey’s prior crimes

“are very serious offenses, and I would be giving him more time if it were not that

he’s presently serving the sentence” in Delaware County and “he’s going to serve

this [sentence] consecutively . . . .” Id. at 82. He then sentenced Starkey to a term

of 84 months, at the lowest end of the SGR.

      We have previously stated that the District Court need not “discuss and

make findings as to each of the [relevant sentencing factors] if the record makes

clear the court took the factors into account in sentencing.” United States v.

Sevilla, 541 F.3d 226, 232 (3d Cir. 2008) (quoting Cooper, 437 F.3d at 329). The

record demonstrates that the District Court heard and acknowledged the parties’

request for a downward departure, and denied it. Although Judge Munley did not

explicitly say, “I am denying a downward variance because of X,” it is clear from

his remarks that the denial was based on the “violent streak” reflected by the nature

                                         6
of the instant offense and Starkey’s prior criminal history.    This is as much

explanation, if not more, than our cases require.

      Our review of the record establishes that the District Court “exercise[d]

independent judgment [] based on a weighing of the relevant factors [] in arriving

at [the] final sentence.” United States v. Grier, 475 F.3d 556, 571-572 (3d Cir.

2007) (en banc). Because there was no abuse of discretion, we will affirm the

sentence.




                                          7
