                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 08-1427
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                  THOMAS HINTON,
                                               Appellant.
                                   _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                 (D.C. No. 02-cr-769)
                      District Judge: Hon. Eduardo C. Robreno
                                  _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 13, 2010

        Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.

                                  (Filed: July 14, 2010)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Thomas Hinton appeals from the judgment entered by the United States District

Court for the Eastern District of Pennsylvania imposing a sentence of 210 months’

imprisonment following his conviction for possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1). Hinton argues that the sentence imposed by

the District Court is procedurally and substantively unreasonable because the Court failed

to properly consider the factors set forth in 18 U.S.C. § 3553(a) when it sentenced him as

a career offender under § 4B1.1 of the Sentencing Guidelines. For the following reasons,

we will affirm.

I.     Background

        Because we write only for the benefit of the parties, we assume familiarity with

the facts of this criminal case and the proceedings in the District Court. On August 5,

2001, Philadelphia police officers received a report that a man, later identified as Hinton,

had threatened another man with a firearm. When the police arrived at the scene, Hinton

fled. After he was apprehended by the officers, they searched him and discovered that he

was carrying thirty-seven packets of crack cocaine. They also found a firearm in the area

Hinton had run through before he was caught.

       On November 19, 2002, a grand jury in the Eastern District of Pennsylvania

returned a three-count indictment charging Hinton with possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); possession

with the intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); and

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). A

jury convicted Hinton of possession with intent to distribute cocaine base, but found him

not guilty of the firearm offenses. The District Court sentenced Hinton to 216 months’



                                             2
imprisonment and three years of supervised release, and Hinton appealed. We affirmed

the conviction but vacated his sentence and remanded for re-sentencing in accordance

with United States v. Booker, 543 U.S. 220 (2005), which had been decided during the

pendency of Hinton’s appeal. See United States v. Hinton, 423 F.3d 355, 363 (3d Cir.

2005).

         The District Court re-sentenced Hinton on January 30, 2008. The Pre-Sentence

Report (“PSR”) prepared in advance of sentencing calculated the base offense level as 22

and added two levels to account for specified offense characteristics. The offense level

was then increased to 32 because Hinton qualified as a career offender pursuant to

§ 4B1.1 of the Sentencing Guidelines.1 Hinton’s criminal history was also enhanced from

a category V to a category VI because he is a career offender. The advisory Guidelines

range would therefore ordinarily be 210 to 262 months of imprisonment. However,

because the statutory maximum for a conviction pursuant to 21 U.S.C. § 841(a)(1) is 240

months, the advisory Guidelines range was 210 to 240 months.



  1
    Pursuant to § 4B1.1(a) of the United States Sentencing Guidelines, “[a] defendant is a
career offender if (1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” Hinton does not dispute that he was over
eighteen years old when he committed the offense, that his conviction under § 841 is a
controlled substance offense, or that he has two prior convictions for crimes of violence.
Those crimes of violence were convictions for robbery in 1990 and aggravated assault in
1993. Hinton was also convicted of possessing an instrument of a crime in 1991 and theft
and possessing cocaine in 1993.

                                             3
       The parties did not object to the PSR, and the District Court adopted its findings,

including the calculation of the advisory Guidelines range as 210 to 240 months of

imprisonment and three years of supervised release. Hinton did not object to the Court’s

calculation of the Guidelines range, but requested a downward departure.2 The Court

denied the motion for a downward departure, explaining that Hinton had a “lengthy

criminal history” and, thus, it was “entirely appropriate that he be designated as a career

criminal in this case.” (App. at 17.) Hinton then requested a variance from the advisory

Guidelines range, arguing that the crime involved a small amount of crack cocaine, did

not involve an actual sale, and that the federal sentence was significantly higher than the

sentence he would receive if he had been prosecuted in state court. He also argued that a

sentence under § 2D1.1 – the section of the Guidelines that would have applied, were he

not a career offender – would provide adequate deterrence and was sufficient to meet the

goals of sentencing. The government opposed Hinton’s request for a variance.

       The Court declined to impose a sentence below the advisory Guidelines range and

sentenced Hinton to 210 months’ imprisonment and three years of supervised release,

among other penalties.3 This timely appeal followed.



  2
    Section 4A1.3(b)(1) of the Sentencing Guidelines states that a downward departure
may be warranted “[i]f reliable information indicates that the defendant’s criminal history
substantially over-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.”
  3
   The Court also ordered Hinton to pay a fine of $1,000 and a special assessment of
$100.

                                              4
II.    Discussion 4

       On appeal, Hinton contends that the sentence imposed by the District Court is

procedurally and substantively unreasonable because the Court sentenced him pursuant to

the Guidelines range for career offenders and failed to adequately consider all of the

§ 3553(a) factors when sentencing him.

        Our precedent requires a district court to undertake three steps when sentencing a

defendant. First, it must correctly calculate the defendant’s Guidelines range. United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). Then, the court must rule on any

motions for departures under the Guidelines provisions. Id. Third, it must “exercise [its]

discretion by considering the relevant § 3553(a) factors in setting the sentence ... .” Id.

(internal brackets, citations, and quotations omitted). 5



  4
    The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
  5
    Title 18, Section 3553(a) requires a court to consider the following factors when
sentencing a defendant:

       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant;
       (2) the need for the sentence imposed –
       (A) to reflect the seriousness of the offense, to promote respect for the law,
       and to provide just punishment for the offense;
              (B) to afford adequate deterrence to criminal conduct;
              (C) to protect the public from further crimes of the defendant; and
              (D) to provide the defendant with needed educational or vocational
              training, medical care, or other correctional treatment in the most
              effective manner;

                                               5
         We review the sentencing judgment of the District Court for abuse of discretion,

examining the District Court’s judgment for procedural error and substantive

reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). A trial court may commit

procedural error during sentencing by “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 – including an explanation for any deviation from the

Guidelines range.” Id. However, when considering the § 3553(a) factors, a district court

“need not make findings as to each factor if the record otherwise makes clear that the

court took the factors into account.” United States v. Lessner, 498 F.3d 185, 203 (3d Cir.

2007).

         We consider the totality of the circumstances when reviewing the substantive

reasonableness of a sentence. See United States v. Tomko, 562 F.3d 558, 567 (3d Cir.

2009) (en banc). “The touchstone of ‘reasonableness’ is whether the record as a whole




         (3) the kinds of sentences available;
         (4) the kinds of sentence and the sentencing range established for –
                (A) the applicable category of offense committed by the applicable
                category of defendant as set forth in the guidelines ...;
         (5) any pertinent policy statement ... issued by the Sentencing Commission
         ...;
         (6) the need to avoid unwarranted sentence disparities among defendants
         with similar records who have been found guilty of similar conduct; and
         (7) the need to provide restitution to any victims of the offense.

                                                 6
reflects rational and meaningful consideration” of the § 3553(a) factors. United States v.

Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).

       Hinton does not specifically indicate which of the § 3553(a) factors he believes the

District Court failed to adequately consider when sentencing him.6 In any case, his

argument that the District Court failed to give “meaningful consideration to the statutory

factors set forth in 18 U.S.C. § 3553(a)” (Appellant’s Br. at 14) is not supported by the

record. In fact, the transcript of the re-sentencing hearing establishes that the District

Court considered Hinton’s arguments as to the § 3553(a) factors and applied those factors

when determining his sentence.

       For example, Hinton argued that § 3553(a)(1), which addresses the nature and

circumstances of the offense and the history and characteristics of the defendant,

supported a sentence below the Guidelines range because the offense involved

approximately 3 grams of crack cocaine and did not involve an actual sale. The Court

agreed with Hinton that the offense involved a relatively small amount of crack cocaine

but determined that the amount of drugs was not the “central feature” of the sentencing

  6
    Hinton’s brief is not entirely clear as to how he believes the District Court erred when
sentencing him. We note that he does not argue that he did not qualify as a career
offender under § 4B1.1. To the extent he argues that the District Court abused its
discretion by denying his motion for a downward departure, we lack jurisdiction to
resolve his claim. Unless it appears that the District Court mistakenly believed that it
lacked authority to grant such a departure, “[w]e do not have jurisdiction to review
discretionary decisions by district courts to not depart downward.” United States v. Jones,
566 F.3d 353, 366 (3d Cir. 2009) (quoting United States v. Vargas, 477 F.3d 94, 103 (3d
Cir. 2007)). Hinton does not argue, and the record does not indicate, that the District
Court was operating under such a misapprehension.

                                              7
because the Court was tasked with determining the “appropriate punishment for a career

criminal.” (App. at 28-29.) Thus, the Court, taking Hinton’s extensive criminal history

into account, concluded that § 3553(a)(1) did not support a variance from the Guidelines

range and that a substantial sentence was required in this case.

       The Court also considered and properly rejected Hinton’s argument that a lesser

sentence was appropriate because he would have received a lesser sentence if he were

prosecuted in state court. See 18 U.S.C. § 3553(a)(6); see also United States v. Clark,

434 F.3d 684, 687 (4th Cir. 2006) (“The sole concern of section 3553(a)(6) is with

sentencing disparities among federal defendants.”). The Court noted that the longer

federal sentence resulted from Hinton’s extensive criminal history. In fact, Hinton agreed

with the Court that he probably would have received similar sentences in state and federal

court, except that the federal sentencing guidelines reflected a policy choice to punish

recidivism more severely.

       In addition, the Court explained that it did not believe that Hinton was unlikely to

commit future crimes, specifically finding that Hinton “has not been rehabilitated, and

that he is a danger to the public.” (App. at 28.) The Court noted that its conclusion was

bolstered by the fact that Hinton committed the instant offense while he was on probation.

Thus, although the Court did not explicitly reject Hinton’s argument that his sentence

should be lowered because his previous convictions were committed several years prior to




                                             8
the present offense, it is clear that the Court rejected the implications of such an argument

– namely that Hinton was rehabilitated and unlikely to commit crimes in the future.

       Further addressing the § 3553(a) factors, the Court decided that a “substantial

sentence” (App. at 27-28) was necessary to reflect the seriousness of the offense, to

promote respect for the law, and to provide adequate deterrence. See 18 U.S.C. §

3553(a)(2). The Court also decided that a sentence of 210 months’ imprisonment, which

was six months shorter than the sentence originally imposed, was appropriate, based on

its recognition that Hinton had completed vocational skill classes in prison and had no

disciplinary issues while incarcerated. See id.

       Lastly, the Court considered the advisory Guidelines range and concluded that a

sentence of 210 months was “sufficient, but no greater than necessary.” (App. at 29.) By

so concluding, the Court rejected Hinton’s sentencing argument that a lesser sentence

under § 2D1.1 was sufficient to meet the requirements of § 3553(a)(2), specifically, “to

afford adequate deterrence” and “to protect the public from further crimes of the

defendant.” 18 U.S.C. § 3553(a)(2).7

  7
    As the Government correctly argues, United States v. Rios, No. 02-828-03, 2009 WL
383750 (E.D. Pa. Feb. 9, 2009), and United States v. Rivera, 535 F. Supp. 2d 527 (E.D.
Pa. 2008), which Hinton cites in his appellate brief, are inapposite. In those cases, the
defendants were seeking a reduction of their sentences under 18 U.S.C. § 3582(c)(2).
The defendants had been sentenced pursuant to § 4B1.1 of the Sentencing Guidelines but
argued that they were eligible for a modification of their sentence after Amendment 706
lowered the base offense levels for cocaine base offenses in § 2D1.1 of the Guidelines. In
both Rios and Rivera, the District Courts rejected these arguments because the defendants
were sentenced pursuant to § 4B1.1, not § 2D1.1, and, thus, Amendment 706 did not
apply. These decisions do not support Hinton’s argument that the District Court failed to

                                              9
         Thus, after reviewing the record, we are unable to find any procedural error in the

sentencing proceeding. The District Court properly undertook each of the three steps

outlined in Gunter, and the transcript of the hearing establishes that the Court considered

Hinton’s arguments regarding the § 3553(a) factors and carefully applied the § 3553(a)

factors when imposing the sentence.

         We also conclude that the sentence imposed by the District Court was

substantively reasonable. “[I]f the district court’s sentence is procedurally sound, we will

affirm it unless no reasonable sentencing court would have imposed the same sentence on

that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at

568. Here, the Court was clearly concerned with punishing and deterring Hinton and

deterring other repeat offenders. The amount of drugs involved in the offense and the

passage of time between Hinton’s previous convictions and the instant offense do not

render such concerns unreasonable. Thus, a sentence of 210 months – at the low end of

the Guidelines range – was not substantively unreasonable.

III.     Conclusion

         Accordingly, we will affirm the judgment and sentence imposed by the District

Court.




properly consider the § 3553(a) factors when imposing his sentence.

                                             10
