                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3797




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"USA v. Peak" (2009). 2009 Decisions. Paper 1138.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1138


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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                           No. 06-3797
                          ____________

                UNITED STATES OF AMERICA,

                                 Appellee

                                 v.

                        HASKELL PEAK,

                                 Appellant

                          ____________

          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                     (D.C. No. 05-cr-00510-1)
          District Judge: Honorable Eduardo C. Robreno
                          ____________

            Submitted Under Third Circuit LAR 34.1(a)
                         June 12, 2009

Before: McKEE, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

                      (Filed: June 25, 2009 )

                          ____________

                   OPINION OF THE COURT
                        ____________
HARDIMAN, Circuit Judge.

       A jury convicted Haskell Peak on 16 counts of an 18-count indictment and the

District Court sentenced him to 360 months in prison. Peak appeals, claiming that the

District Court committed procedural error by failing to give meaningful consideration to

his argument that his status as a career offender substantially over-represented the

seriousness of his criminal history. We will affirm.

                                             I.

       We write only for the parties, who are familiar with the case, so we recount only

the essential facts.

       At sentencing, Peak argued that his prior convictions did not render him a career

offender under § 4B1.1 of the United States Sentencing Guidelines (USSG).

Alternatively, Peak argued that even if he were “technically” a career offender, the

District Court should exercise its discretion to sentence him below his Guidelines range

of 360 months to life imprisonment.

       The District Court properly gave short shrift to Peak’s first argument, because his

prior convictions for a felony drug offense and aggravated assault plainly qualified him as

a career offender for purposes of § 4B1.1 of the Guidelines. Accordingly, the District

Court correctly found that Peak’s adjusted Guidelines imprisonment range was 360

months to life based on an offense level of 37 and a criminal history category of VI.

After correctly determining Peak’s Guidelines range, the District Court stated that it



                                             2
would consider Peak’s over-representation argument in conjunction with its analysis of

the sentencing factors of 18 U.S.C. § 3553(a). The crux of Peak’s appeal is that the

District Court failed to do so.

       Our review of Peak’s sentencing hearing leads to the conclusion that the District

Court committed no procedural error. The District Court acknowledged Peak’s

over-representation argument, stating that counsel “made a good argument about the

sentence, the Guidelines overstating the criminal history, and he made a good argument

that under [the] 3553(a) factors, your sentence should be modified.” App. 87. Despite

acknowledging counsel’s efforts, the District Court disagreed, explaining that Peak was a

“repeated offender” who earned a good living “poisoning the neighborhoods and the

streets of this country.” App. 81-82. The District Court also reviewed the applicable

§ 3553(a) factors and explained why a Guidelines sentence at the bottom of the range was

appropriate in Peak’s case. In sum, the record reflects due consideration of Peak’s

individual circumstances within the framework established by Congress in 18 U.S.C.

§ 3553(a).

       Peak claims that vacatur and remand is required under our decisions in United

States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), and United States v. Ausburn, 502 F.3d 313

(3d Cir. 2007). Those cases are factually distinguishable, however. In Ausburn, the

defendant appealed a 144-month sentence, which was well above his Guidelines range of

57 to 71 months. When Ausburn objected to the sizeable variance on the grounds that it



                                            3
constituted an unwarranted sentencing disparity, the District Court did not address this

“properly presented sentencing argument which ha[d] colorable merit and a factual

basis.” Ausburn, 502 F.3d at 329. Unlike in Ausburn, here the District Court specifically

acknowledged Peak’s argument, expressed its explicit disagreement therewith, and

explained the reasons why a within-Guidelines sentence was appropriate.

       In Sevilla, we vacated and remanded because “the record [did] not indicate that the

District Court considered the § 3553(a) factors at Gunter’s step three.” Sevilla, 541 F.3d

at 232. Instead of addressing Sevilla’s colorable arguments regarding his childhood and

the crack/powder cocaine disparity, the District Court made a rote statement that it had

considered all of the § 3553(a) factors. The District Court made no such rote statement in

Peak’s case. Accordingly, we see no reason to disturb the judgment below.




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