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


4-22-2009

USA v. Omar Howard
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2499




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Recommended Citation
"USA v. Omar Howard" (2009). 2009 Decisions. Paper 1500.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1500


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-2499


                           UNITED STATES OF AMERICA


                                            v.

                                   OMAR HOWARD

                                                       Appellant.


              On Appeal of a Decision of the United States District Court
                for the District of New Jersey (Crim. No. 07-442-001)
                            District Judge: Renee M. Bumb


                      Submitted under Third Circuit L.A.R. 34.1(a)
                                    March 6, 2009

                 Before: SLOVITER and HARDIMAN, Circuit Judges,
                            and POLLAK, District Judge.*

                                 (Filed: April 22, 2009 )


                                       OPINION




      *
         Honorable Louis H. Pollak, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge

       Appellant Omar Howard challenges the reasonableness of his sentence following

entry of a guilty plea for possession of a controlled substance with intent to distribute.

We will affirm.

                                              I.

       Howard was arrested in possession of seventy grams of crack cocaine after two

controlled drug buys initiated by the Cumberland County Narcotic Task Force in

Bridgeton, New Jersey. He cooperated with Cumberland County police and federal Drug

Enforcement Administration agents, and, under an agreement with the U.S. Attorney in

New Jersey, pleaded guilty to one count of possession with intent to distribute in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(B).

       At sentencing, the District Court determined that Howard had a criminal history of

II under the Sentencing Guidelines because he had two previous marijuana convictions in

New Jersey state courts. Howard’s offense level was 27, making his guidelines range

between seventy-eight and ninety-seven months. The government requested a sentence at

the lower end of the range due to Howard’s model behavior following arrest, his

cooperation, and his “obviously impressive family support.” Appx. 118-19. Defense

counsel requested a downward variance to sixty months. Counsel argued that, after the

earlier convictions, Howard had cleaned up his addictions, found work, and followed a

law-abiding path for many years until, after a job layoff that led to economic troubles,



                                              2.
Howard took up drug dealing as a stopgap while he sought legitimate employment.

Counsel argued that Howard is a very involved father to his three children; counsel also

demonstrated that Howard had substantial family support to help him after release.

       The District Court reviewed all the evidence and argument, analyzed the

circumstances through the § 3553(a) factors, and sentenced Howard to seventy-eight

months, the bottom of the applicable guidelines range. The judge stated that, while she

was impressed by much of what was said about the defendant’s situation, Howard had

returned to illegal activity following the light marijuana punishments and needed specific

deterrence to learn to stay away from crime permanently.

                                             II.

       We review the District Court’s sentence for abuse of discretion. Gall v. United

States, 128 S. Ct. 586, 597 (2007). We begin by reviewing for any procedural errors.

United States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008). Howard received a sentence at

the bottom of the guidelines range; the court properly calculated the range, and Howard

does not challenge this calculation. We therefore review the substantive reasonableness

of the sentence. Id.

       Howard argues that the sentence was unreasonable under Gall, 128 S. Ct. at 597,

and United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006), because the “District

Court focused exclusively on the need for deterrence, while failing to give meaningful

consideration to the defendant’s characteristics ...”, his family support, and his



                                              3.
cooperation with state police, DEA agents, and the U.S. Attorney. Appellant’s Br. at 9

(capitalizations omitted). The record of sentencing, however, demonstrates otherwise.

Howard was capably represented at sentencing, and his attorney presented all mitigation

arguments supporting a downward variance. JA 112 - 117. The district judge

acknowledged and evaluated these arguments at the beginning of her sentencing analysis,

JA 119-20, and she discussed them as she examined the § 3553(a) factors, JA 120-21.

The judge expressly mentioned Howard’s family support, his model behavior in prison,

and his personal characteristics. While it is true that the judge focused her review on the

need for general and specific deterrence, the record does not support the conclusion that

these factors overwhelmed meaningful consideration of other factors and circumstances.

The record makes plain that the District Court balanced all the relevant considerations in

arriving at the conclusion that Howard should receive a guidelines sentence — but one at

the bottom of the range, reflecting the defendant’s cooperation and good behavior since

arrest. In short, the record supports the conclusion that Omar Howard’s guidelines

sentence was reasonable.

                                            III.

       For the reasons stated, we will affirm the sentence.




                                             4.
