                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3479




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Recommended Citation
"USA v. Horne" (2002). 2002 Decisions. Paper 466.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/466


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                                                 NOT PRECEDENTIAL

                THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                           No. 01-3479



                    UNITED STATES OF AMERICA

                               v.

                         RICHARD HORNE,

                                                 Appellant.

                           ___________


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                 (D.C. Criminal No. 99-cr-00213)
         District Judge: The Honorable A. Richard Caputo



            Submitted Under Third Circuit LAR 34.1(a)
                          July 23, 2002

      BEFORE: SLOVITER, NYGAARD, and BARRY, Circuit Judges.

                      (Filed: July 30, 2002)

                           ___________

                       OPINION OF THE COURT
                           ___________


NYGAARD, Circuit Judge.
         Appellant, Richard Horne, contends that the sentencing court violated his
Eighth Amendment right to be free from cruel and unusual punishment, when it
sentenced him as a career offender to 84 months’ incarceration for the delivery of one
gram of crack cocaine. We will affirm.
         Most of the facts leading to Appellant’s arrest and conviction are of
importance to neither his argument nor our decision. So, we will omit them, except as are
necessary to explain why we are affirming. The Guideline sentence for Appellant’s
offense     selling one gram of crack cocaine    was 30 to 37 months. He is, however,
classified as a career offender because he had two uncontested predicate offenses
involving drugs. Horne does not challenge his career offender status. But, because of
the classification, the Guidelines call for an enhancement from 30-37 months, to 151-188
months, which he argues is both cruel and unusual.
         In United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994) we held that a
District Court may depart downward on a defendant’s base offense level if the
defendant’s career offender status over-represents his criminal history and likelihood of
recidivism.    That is precisely what the District Court did in this case  it exercised its
discretion and lowered his criminal history category to V, and dropped the offense level
to 23, indicating a range of 84 to 140 months. This decision is well within the
considerable discretion given by the Guidelines to the District Court, and is not
challenged by the government. The court sentenced him to 84 months of incarceration.
         Finally, this sentence, lying at the absolute bottom of the range, does not
offend the constitutional proscription of cruel and unusual punishments. The Eighth
Amendment only prohibits a sentence that is grossly disproportionate to the severity of
the crime. Solem v. Helm, 463 U.S. 277, 290 (1983). The District Court did all it was
required to do and left this sentence within the constitutional range of proportionality.
         In sum, for all of the foregoing reasons, and the reasons given by the
District Court, we will affirm.
_________________________


TO THE CLERK:

         Please file the foregoing opinion.




                                        /s/ Richard L. Nygaard
                               Circuit Judge
                THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 01-3479
                           ___________


                    UNITED STATES OF AMERICA

                               v.

                         RICHARD HORNE,

                                                        Appellant.

                           ___________


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                 (D.C. Criminal No. 99-cr-00213)
         District Judge: The Honorable A. Richard Caputo

                           ___________

            Submitted Under Third Circuit LAR 34.1(a)
                          July 23, 2002



      BEFORE: SLOVITER, NYGAARD, and BARRY, Circuit Judges.
                             JUDGMENT




         This cause came to be considered on the record from the United States
District Court for the Middle District of Pennsylvania and was submitted pursuant to
Third Circuit LAR 34.1(a) on July 23, 2002.
         On consideration whereof, it is now here ORDERED AND ADJUDGED
by this Court that the judgment of the said District Court entered on August 30, 2001, be,
and the same is hereby affirmed.
         All of the above in accordance with the opinion of this Court.

                               ATTEST:



                               _________________________________
                               Acting Clerk

Dated: 30 July 200
