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


1-8-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4331




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 06-4331
                                     ____________

                           UNITED STATES OF AMERICA

                                             v.

                                    JACOB WHITE,

                                          Appellant
                                     ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 04-cr-00212)
                     District Judge: Honorable James M. Munley
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 7, 2008

           Before: FISHER, HARDIMAN and ALDISERT, Circuit Judges.

                                (Filed: January 8, 2008)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Following his guilty plea to distribution and possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), Jacob White was sentenced to

150 months’ imprisonment. During White’s first appeal, the Government agreed that he
was entitled to a downward departure for substantial cooperation with authorities, and at

resentencing, White was sentenced to 78 months’ imprisonment. White now appeals

from that sentence, arguing that the District Court neglected to consider the lighter

sentences imposed on similarly situated defendants. For the reasons that follow, we will

affirm.

                                                I.

          We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

          At his original sentencing hearing, White argued that the various other

methamphetamine distribution cases in the United States District Court for the Middle

District of Pennsylvania resulted in sentences no greater than 64 months, even when the

drug quantities exceeded that attributable to White. The District Court concluded:

          “I want you to know this, that every time an individual comes in the
          courtroom, every case is different. Sometimes people commit the same
          kind of a crime, and there’s a difference in the way the Judge looks at it.
          We studied the presentence report. . . . Now, I don’t know that in depth,
          that study that you made about these other cases, but I will tell you what, I
          don’t know any one of them that has 19 criminal history points. . . . I have
          no idea what you’re talking about these individual cases, and so I don’t
          think that that is the standard by which I’m going to impose a sentence on
          this fellow. So your motion for a sentence of 60 months downward
          departure for those reasons about a disparity is denied.”

Later, while considering the factors under 18 U.S.C. § 3553(a), the District Court stated

that White’s counsel “brings up a lot of cases, which I don’t know about the cases,


                                                2
because every single case that comes before a Judge is very different.” It then sentenced

White to 150 months.

       At White’s resentencing hearing, the District Court granted the Government’s

motion for a downward departure of four levels, and departed downward two additional

levels following White’s testimony regarding his substantial assistance to authorities,

from a total offense level of 27 to 21. Combined with a criminal history category of VI,

this resulted in a Guidelines range of 77 to 96 months.

       The District Court then again heard argument on whether it should vary downward

to “avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). It concluded:

“Now, if you’re . . . alluding to some other lesser – much lesser sentences, and requesting

the court to impose a sentence in those numbers that you gave me, for purposes of your

objection I’m denying your objection to that.”

       It also stated:

       “He has one juvenile adjudication, and four adult convictions, which did not
       qualify for points under the Guidelines. Regardless, the subject has
       accumulated 19 criminal history points, which place him in a criminal
       category – history category six. His prior record also displays several
       parole violations and reflects his continued criminal behavior. The instant
       offense is unrelated to the state sentence the defendant is currently serving.
       The subject employment history is minimal at best.”

The District Court then imposed a sentence of 78 months’ imprisonment. The instant

appeal followed.

                                            II.

                                             3
         We have jurisdiction to review the sentence under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). United States v. Cooper, 437 F.3d 324, 327 n.4 (3d Cir. 2006). We review the

sentence for abuse of discretion. Gall v. United States, 128 S. Ct. 586, 600 (Dec. 10,

2007).

         White’s only argument on this, his second appeal, is that the District Court failed

to consider the § 3553(a)(6) factor of unwarranted sentence disparities. In United States

v. Charles, 467 F.3d 828 (3d Cir. 2006), we rejected a similar argument. In doing so, we

reasoned:

         “The ‘need to avoid unwarranted sentence disparities among defendants
         with similar records who have been found guilty of similar conduct,’ 18
         U.S.C. § 3553(a)(6), is just one factor (if relevant) that should be balanced
         against the others (again, if relevant). Charles concludes that his sentence
         will create unwarranted disparities based on three District Court cases from
         the Middle District of Pennsylvania where, pre-Booker, inmates received
         mid-range or below-range Guidelines sentences for possession of knife-like
         objects. As the Government correctly notes, Charles has not shown that any
         of the defendants in the District Court cases to which he cites are similarly
         situated to him for purposes of comparing career offenders with a history of
         institutional misconduct, and therefore relevant for a § 3553(a)(6)
         comparison. Even if he had, a mere similarity would not be enough to
         overcome the high level of deference we accord sentencing judges.”

Id. at 833 (internal citations omitted).

         The same reasoning applies to White’s case. Here, the District Court stated that it

was not aware that any of the other methamphetamine-distributing defendants had 19

criminal history points, nor did White so suggest. This fact alone renders White not




                                               4
similarly situated with the others.1 Nor does White indicate that the other defendants he

cites had the specific offense characteristic of possessing a dangerous weapon, which

contributed another two levels to White’s total offense level under the Guidelines.

       Moreover, the argument that the District Court needed to cite explicitly language

in § 3553(a)(6) is a nonstarter. See id. at 831. Here, the District Court explained

thoroughly as a procedural matter and reasonably as a substantive matter at both

sentencing hearings why it declined to impose a sentence based on what other defendants

in the Middle District of Pennsylvania received and so met our “requirement to state

adequate reasons for a sentence on the record so that we can engage in meaningful

appellate review.” Id. (internal brackets and citation omitted). Finally, the record

contains no indication that the District Court’s exercise of discretion not to vary

downward constituted a belief that it was not permitted to do so.

                                             III.

       For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.




       1
         For example, for a defendant with a total offense level of 21, the Guidelines range
is 37 to 46 months for criminal history category I and 46 to 57 months for criminal history
category III. White ignores the high probability that the defendants he cites for
comparison may have started in one of the lower ranges and so are not similarly situated
to him.

                                              5
