                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1371




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                                                                         NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                                         No: 06-1371

                              UNITED STATES OF AMERICA,

                                                    Appellee

                                                v.

                                     WILLIE ANDERSON,

                                                    Appellant

                          Appeal From the United States District Court
                                  For the District of Delaware
                                  (Crim. No. 05-cr-00057-2)
                           District Court: Hon. Joseph J. Farnan, Jr.

                        Submitted pursuant to Third Circuit LAR 34.1(a)
                                      December 11, 2007

               Before: MCKEE, CHAGARES, and HARDIMAN, Circuit Judges

                                (Opinion Filed: June 5, 2008 )

                                           OPINION

McKEE, Circuit Judge.

       Willie Anderson appeals the sentence that was imposed following his guilty plea. He

argues that it was unreasonable under United States v. Booker, 543 U.S. 220 (2005). For the

reasons that follow, we will vacate the sentence and remand for resentencing.



                                               I.

       Inasmuch as we write primarily for the parties who are familiar with this case, we need


                                               1
not set forth the factual or procedural history except insofar as may be helpful to our brief

discussion. We review the sentence for unreasonableness pursuant to the sentencing factors

listed in 18 U.S.C. § 3553(a). Booker, 543 U.S. at 260-61.

       Anderson argues that the district court’s sentence is unreasonable because the district

court failed to adequately consider any relevant § 3553(a) factors other than the sentencing

guidelines. Anderson argued at sentencing that other factors including his family history and the

nature of his prior offenses justified a sentence below that suggested by the applicable guideline

range. Anderson suggested that the mandatory minimum sentence of five years was appropriate.

After hearing this argument and the government’s rebuttal, the district court stated, “If I want to

go outside the guidelines, I have to find a reason. And, ultimately, I couldn’t find one. . . the

probation officer’s presentence [report] recommended a sentence at the low end of the

guidelines. . . and I decided to place my confidence in that recommendation.” Based on these

statements, Anderson argues that the district court placed undue reliance on the guidelines to the

exclusion of the other factors that the court should have considered under 18 U.S.C. § 3553(a).

We agree.

       The district court’s statement that a specific reason was needed to impose a sentence

outside the guidelines is simply wrong. It strongly suggests that the court intended to impose a

guideline sentence unless the defendant could produce sufficient reasons to do otherwise. That is

contrary to United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2007). There, we said: “At least

one court has held a sentencing judge is presumed to have considered all of the § 3553(a) factors

if a sentence is imposed within the applicable guidelines range. United States v. Mares, 402 F.3d

511, 519 (5th Cir. 2005). We decline to follow this approach.” Rather, in assessing whether a


                                                  2
sentence is reasonable, we examine the record for evidence that the court considered all relevant

factors under 18 U.S.C. § 3553(a), not just the sentencing guidelines. They are only one such

factor. Cooper, 437 F.3d at 329. Although we have explained that a sentence within the

appropriate guideline range is more likely to be reasonable than one that is outside of that range,

we have expressly rejected the view that a within-guidelines sentence is per se reasonable. Id. at

331. There must still be evidence in the record that the court considered all of the § 3553(a)

factors as well as any other appropriate considerations raised by the parties. Id. at 332. Given

the district court’s statement that it intended to impose a sentence under the guidelines unless

Anderson could establish that a guideline sentence was not appropriate, it is exceedingly difficult

to determine if the court considered a guideline sentence to be per se reasonable, or merely relied

upon the guideline range as the starting point in considering the other factors under 18 U.S.C. §

3553(a). Given the Supreme Court’s recent reiteration in United States v. Gall, 128 S. Ct. 586,

596 (2007), that the district court “may not presume that the Guideline range is reasonable,” we

believe this dispute can best be resolved by remanding the case to the district court. Although

the district court did not have the advantage of the Court’s discussion in Gall, we assume that the

court was familiar with the identical admonition in Cooper, 437 F.3d at 329-30.

       On remand, the court can clarify the extent to which it considered the other sentencing

factors, or impose a different sentence after considering each of the appropriate factors under §

3553(a), if the court did not do that when imposing Anderson’s sentence.

                                                 II.

       Accordingly, for the reasons set forth above, we vacate Appellant’s sentence and remand

for resentencing consistent with this opinion.


                                                 3
United States v. Willie Anderson

No. 06-1371



HARDIMAN, Circuit Judge, dissenting.

        In its landmark decision in Booker v. United States, 543 U.S. 220 (2005), the Supreme

Court restored to district judges much of the broad discretion to sentence criminal defendants

they possessed prior to the adoption of the United States Sentencing Guidelines in 1984. See 543

U.S. at 227. Because I cannot agree with the majority’s conclusion that the District Judge in this

case abused his discretion when he sentenced Anderson at the bottom of the advisory Guidelines

range, I respectfully dissent.

                                                 I.

        This case is not unlike Rita v. United States, 127 S. Ct. 2456 (2007), in which the district

court imposed a bottom-of-the-Guidelines sentence of 33 months. Id. at 2469. In Rita, the

district judge listened to the defendant’s arguments for leniency, considered and understood the

supporting evidence, found that the defendant’s circumstances were not atypical, and pronounced

the sentence “appropriate.” Id. Characterizing the judge’s explanation as “brief but legally

sufficient,” the Supreme Court concluded, “[h]e must have believed that there was not much

more to say.” Id. As in Rita, the District Court in this case could have been more comprehensive

in articulating the rationale supporting Anderson’s sentence, but that does not make its sentence

legally insufficient.

                                                 II.

        I agree with the majority that district courts may not presume that within-Guidelines


                                                 4
sentences are reasonable. Gall v. United States, 128 S. Ct. 586, 596-97 (2007). The majority is

also correct to note that, although courts of appeal are free to adopt a rebuttable presumption that

within-Guidelines sentences are reasonable, id. at 597, this Court has declined to do so. See

United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir. 2007). Thus, we review all sentences for

evidence that the district court considered the other relevant § 3553(a) factors. Id. at 329.

Because the purpose of this review is simply to ensure that the district court’s inquiry did not

begin and end with the Guidelines, it is not searching. See Gall, 128 S. Ct. at 597. We do not

require the district judge to make explicit findings as to each § 3553(a) factor, to state by rote that

he or she knows the Guidelines are advisory, or to invoke particular “magic words.” Cooper,

437 F.3d at 329, 332.

       The majority expresses concern that the District Court treated the Guidelines as

presumptively reasonable and, consequently, gave insufficient consideration to the other

§ 3553(a) factors. The majority notes: “it is exceedingly difficult to determine if the court

considered a guideline sentence to be per se reasonable, or merely relied upon the guideline

range as the starting point in considering the other factors under 18 U.S.C. § 3553(a).” The

majority resolves this uncertainty against the District Judge. Because I believe the record shows

that the District Judge adequately considered the relevant § 3553(a) factors, I would reach the

opposite conclusion.




                                                 III.

       The record in this case demonstrates that, although he did not cite to the subsections of §


                                                  5
3553(a) letter-by-letter as we would prefer, the District Judge’s analysis of the applicable

sentencing factors was considerably more thorough than the curt review upheld by the Supreme

Court in Rita. Here, the District Judge considered: “the nature and circumstances of the

offense”* and “the history and characteristics of the defendant,”** § 3553(a)(1); “the need for the

sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense,”*** § 3553(a)(2)(A); “the need for the sentence imposed

to afford adequate deterrence to criminal conduct,”**** § 3553(a)(2)(B); “the need for the sentence

imposed to provide the defendant with needed educational or vocational training, medical care,




       *
         The judge “agree[d] with the assessment of the probation officer . . . that Mr.
Anderson was involved in supplying the drugs for this transaction, and also had some
financial dealings with the supplier.” App. 47. He noted Anderson’s “ability to respond
quickly to the confidential informant’s request” for cocaine. Id. And he made clear to
Anderson that he was “not taking into account . . . that on [sic] the transaction there was
some rumor of a gun being present.” Id.
       **
           The judge discussed Anderson’s criminal history, stating: “With regard to the
criminal history record . . . I’ve considered the fact that they’re misdemeanors, but . . . I
find that they’re serious enough that I shouldn’t grant the reduction and alter the criminal
history category.” App. 47-48. The judge also informed Anderson that he read the letter
submitted by Anderson’s fiancee discussing their family situation. App. 39-41, 53.
       ***
           The prosecutor told the judge: “There has been a judgment that’s reflected in
the statutory sentencing scheme that crack cocaine sales are a very serious offense.”
App. 56; see Rita, 127 S. Ct. at 2469 (Where the record shows that the judge listened to
the parties’ arguments and considered and understood the supporting evidence, the judge
need not state “explicitly that he . . . heard and considered the evidence and argument.”).
       ****
              The judge told Anderson: “I understand that you’ve been incarcerated since
April . . . [a]nd that you have thought seriously about your predicament, and have tried to
find avenues that could support your efforts to change your life around.” App. 53.

                                                 6
or other correctional treatment in the most effective manner,”***** § 3553(a)(2)(D); “the kinds of

sentences available,”****** § 3553(a)(3); “the kinds of sentences and the sentencing range

established for the applicable category of offense committed by the applicable category of

defendant as set forth in the guidelines,”******* § 3553(a)(4); and “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of

similar conduct,”******** § 3553(a)(6).

       In light of the foregoing, I do not share the majority’s concern that the District Judge

considered a within-Guidelines sentence to be presumptively reasonable. If this were his belief,

the District Judge would have dispensed with the discussion of factors related to §§ 3553(a)(1),

(a)(2)(A), (a)(2)(B), (a)(2)(D), (a)(3), and (a)(6) in favor of a simple reference to § 3553(a)(4).



       *****
            The judge ordered Anderson to “participate in a drug aftercare treatment
program at the direction and discretion of his probation officer.” App. 59. He also
expressed his hope that Anderson would “continue [his] rehabilitative efforts in prison,
and come out and be able to be a father to [his] children, a companion to Ms. Walker,
and a good citizen.” App. 57.
       ******
             The judge listened to defense counsel’s argument that “the minimum
sentence the Court is required to impose is adequate to meet the requirements of the
statute.” App. 52; see Rita, 127 S. Ct. at 2469. The judge also reviewed Anderson’s
requests for downward departures and exercised his “discretion to decline to depart in
this case.” App. 58. Finally, the prosecutor clearly informed the judge that he was not
bound by the Guidelines range. App. 55; see Rita, 127 S. Ct. at 2469.
       *******
              The judge told Anderson: “[T]he break you’re going to get is you’re going
to get the low end of the guideline range, 108 months.” App. 57.
       ********
                The prosecutor informed the judge that “the Court sentenced the co-
defendant, Eric Samson” to 121 months, and “his sentencing guideline range was 121 to
151 months.” App. 55; Rita, 127 S. Ct. at 2469. Moreover, the prosecutor said, “based
on my knowledge of the case, I believe . . . it’s appropriate that Mr. Anderson’s guideline
range is less than Mr. Samson’s was.” App. 55.

                                                  7
Accordingly, I believe that the District Judge concluded — like the sentencing judge in Rita —

that Anderson’s circumstances were “simply not different enough” to place his case outside the

“minerun of roughly similar [crack-cocaine] cases” to which the Guidelines range is

appropriately applied. Rita, 127 S. Ct. at 2469.

       The majority also suggests that the Supreme Court’s recent decision in Gall, which

further expanded the discretion of sentencing judges, supports vacating Anderson’s sentence. I

disagree. In rejecting the use of rigid formulas for determining how convincing a judge’s

explanation of a sentencing decision must be, Gall, 128 S. Ct. at 595, the Supreme Court found it

“uncontroversial that a major departure [from the Guidelines] should be supported by a more

significant justification.” Id. at 597. By reverse inference, a sentence at the bottom of the

Guidelines range, like Anderson’s, should not require a lengthy explanation. Rita, 127 S. Ct. at

2469. Measured against this standard, the District Court’s explanation was more than sufficient.



                                                IV.

       In addition to expecting a lengthier explanation from the District Judge than the law

requires, Rita, 127 S. Ct. at 2469, the majority’s decision largely overlooks our second

sentencing priority: “creating a fair and uniform sentencing regime across the country.” Cooper,

437 F.3d at 331 (quoting United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005)). The

Guidelines continue to play an important role in this regard. As the majority recognizes, we have

stated that a within-Guidelines sentence is “more likely to be reasonable than one that lies

outside” the Guidelines range. Id. For this reason, the Guidelines provide “a natural starting

point” and “benchmark” for the district court’s sentencing decision. Id.; Gall, 128 S. Ct. at 596


                                                   8
n.6 (“[D]istrict courts must begin their analysis with the Guidelines and remain cognizant of

them throughout the sentencing process.”).

       In this case, the majority expresses discomfort with the judge’s statement: “If I want to

go outside the guidelines, I have to find a reason.” If this were all the District Judge had said, I

would agree with the majority that the Guidelines supplanted the other § 3553(a) considerations.

But the District Judge said much more. See Section III, supra. Given this context, I find that he

merely relied upon the Guidelines as the starting point in tailoring his sentence to Anderson’s

specific situation. I find this reliance appropriate and consistent with the post-Booker precedents

of the Supreme Court and this Court.



                                                  V.

       In sum, because the District Court considered the relevant § 3553(a) factors, did not place

exclusive or presumptive reliance on the Guidelines, and imposed a sentence that was both

procedurally and substantively reasonable, I would affirm Anderson’s sentence.




                                                  9
