                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2541




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Recommended Citation
"USA v. Lewis" (2003). 2003 Decisions. Paper 608.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/608


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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                       ___________


                                       No. 02-2541
                                       ___________


                            UNITED STATES OF AMERICA


                                             v.


                                   VINCENT LEWIS,
                                                  Appellant
                                       ___________


                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                    (2:00CR0066-02)
                     District Judge: The Honorable Jay C. Waldman
                                       ___________


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                      April 11, 2003


      Before: ALITO and FUENTES, Circuit Judges and PISANO*, District Judge


                             (Opinion Filed: April 28, 2003)
                              ________________________


* The Honorable Joel A. Pisano, United States District Judge for the District of New Jersey,
sitting by designation.
                              ________________________

                               OPINION OF THE COURT
                              ________________________

FUENTES, Circuit Judge:

       Defendant Vincent Lewis appeals the sentence imposed on him by the District Court.

Defendant pled guilty to conspiracy to distribute more than 50 grams of “crack” cocaine, in

violation of 21 U.S.C. § 846; distribution of more than 50 grams of “crack” cocaine within

1,000 feet of a public housing project, in violation of 21 U.S.C. § 860; and two counts of

distribution and aiding and abetting the distribution of more than 50 grams of “crack”

cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In the plea agreement,

defendant acknowledged that, if the United States Probation Officer later determined that he

had at least two prior felony convictions involving either crimes of violence or controlled

substances, then he would be considered to be a career offender under U.S.S.G. § 4B1.1, his

offense level would be 37, and h is criminal history category would be VI, resulting in a

sentencing range of 360 months to life imprisonment.

       Because defendant had been convicted of two prior felony controlled substances

offenses, the presentence report indicated that a sentence of 360 months to life was

appropriate.   Defendant did not contest the sentencing guidelines calculation at the

sentencing hearing. The District Court imposed the minimum sentence of 360 months



                                            -2-
imprisonment, 10 years supervised release, and a $400 special assessment.

       On appeal, defendant asserts that, prior to sentencing, he submitted a sentencing

memorandum to the Court, in which counsel argued that the Court should grant a downward

departure because defendant’s career offender status overstated his criminal history and

likelihood of recidivism and because defendant suffered from extraordinary physical

impairments, i.e. end stage kidney disease and HIV. Defendant asserts that it is impossible

to discern from the record whether the Court did not rule on his downward departure motion,

denied the request after due consideration, or believed it lacked the discretion to depart

downward. Accordingly, defendant asserts that this Court should vacate his sentence and

remand for resentencing.

       In response, the government explains why the record of the sentencing hearing does

not reflect the District Court’s consideration of defendant’s motion for downward departure.

The government explains that, although the docket reflects that defendant’s sentencing

memorandum had been filed one day before sentencing, neither the District Court nor the

government received a copy before sentencing. Because the motion was not received by the

government or the Court prior to sentencing and neither the defendant nor his counsel

advised the Court during the sentencing hearing that they had filed a downward departure

motion, the Court did not consider it in imposing a sentence.

       The government agrees that the interests of justice warrants a remand to permit a

hearing on defendant’s motion for downward departure. W e therefore vacate the judgment


                                            -3-
of sentence entered in this case and remand the matter for resentencing. 1




_____________________________

TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.

                                                            By the Court,

                                                            /s/ Julio M. Fuentes
                                                            Circuit Judge




       1
          The government has also raised the possibility that the District Court did not consider
Lewis’s motion because it was untimely. A District Court retains the discretion to consider an
untimely motion for a downward departure but is not obligated to do so. See United States v.
Rashid, 274 F.3d 407, 416 (6th Cir. 2001). If the District Court did not consider Lewis’s motion
for this reason, it should state as much on remand, because it may foreclose our jurisdiction over
a possible subsequent appeal. See United States v. Quintana, 300 F.3d 1227, 1230–31 (11th Cir.
2002).

                                               -4-
