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


12-4-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5314




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Recommended Citation
"USA v. McKinnon" (2008). 2008 Decisions. Paper 163.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 05-5314
                                     ___________


                           UNITED STATES OF AMERICA

                                           v.

                               MICHAEL MCKINNON

                                          Appellant
                                     ___________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Criminal No. 03-cr-00251)
                    District Judge: The Honorable Sylvia H. Rambo
                                      ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                OCTOBER 31, 2008

             BEFORE: McKEE, NYGAARD, and SILER,* Circuit Judges.


                               (Filed: December 4, 2008)

                                     ___________

                              OPINION OF THE COURT



       *Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court
of Appeals for the Sixth Circuit, sitting by designation.
                                       ___________

NYGAARD, Circuit Judge.

       Appellant Michael McKinnon was convicted of three counts in a six-count

indictment: Count One, distribution and possession with intent to distribute crack cocaine,

cocaine hydrochloride, marijuana, and other controlled substances, in violation of 21

U.S.C. § 841(a)(1); Count Three, conspiracy to launder proceeds of the distribution of

controlled substances, in violation of 18 U.S.C. § 1956(h); and Count Four, possession

and use of firearms during and in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924. The District Court sentenced McKinnon to an aggregate sentence of forty

years’ imprisonment, five years’ supervised release, a $1,000.00 fine and $300.00 special

assessment.

       On appeal, McKinnon raises three issues, all of which are meritless. McKinnon

first argues that the Government violated his equal protection rights because it used

peremptory challenges to intentionally exclude African-American venirepersons, based

on their race. Next, McKinnon maintains that Count IV of the indictment was defective

because it was duplicitous. Lastly, McKinnon submits that his sentence was unreasonable

because the District Court failed to rule on each of his arguments for a lesser sentence.

We will affirm.

                                             A.




                                              2
       Batson v. Kentucky, 476 U.S. 79 (1986), created a three-step framework for judges

to employ in determining whether a prosecutor has violated the accused’s right to the

equal protection of the law. We will go directly to the second step of the analysis.1 At

step two, the burden shifts to the Government to explain the racial exclusion by offering

race-neutral reasons for the strikes. Here, our review of the record regarding the three

challenged individuals — Gingrich, Manari and Polite — reveals that the Government

prosecutor did not discriminate in exercising peremptory challenges. We give great

deference to the District Court's decision to credit the prosecution's justification for

striking these potential jurors. After reviewing the record, we cannot say the District

Court's finding that the prosecutor had a nondiscriminatory motive for these potential

jurors was “completely devoid of minimum evidentiary support displaying some hue of

credibility.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).

                                              B.

       McKinnon next argues that Count IV of the indictment was duplicitous — an

argument he acknowledges he failed to present to the District Court. We have

consistently held that we will not consider an issue such as this that is being raised for the




        1
           At the first step of the Batson analysis, any question regarding the existence of
a prima facie showing of discrimination becomes moot where, as here, the prosecutor
offers an explanation of the peremptory challenge before the district court expressly
addresses the prima facie issue.

                                               3
first time on appeal. Accordingly, we decline to consider McKinnon’s argument that his

indictment was duplicitous.

                                             C.

       In reviewing criminal sentences we look for any significant procedural error, such

as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen

sentence-including an explanation for any deviation from the Guidelines range. Second,

using a reasonableness test, we look to see if the District Court abused its discretion.

McKinnon’s arguments primarily is that the District Court allegedly failed to specifically

address certain of his arguments at the sentencing hearing.

       McKinnon’s counsel successfully argued for a sentence below the guideline range

of life imprisonment. The District Court listened, reviewed and discussed and rejected

counsel’s other arguments in support of a lesser sentence than it imposed. The District

Court’s sentence was not unreasonable nor were its findings clearly erroneous. Hence,

we will affirm both the conviction and sentence.




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