                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 11-2942
                                    ____________

                             UNITED STATES OF AMERICA

                                           v.

                                CHARLES J. SECHLER,

                                      Appellant
                                    ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. No. 3-03-cr-00032-008)
                      District Judge: Honorable Edwin M. Kosik
                                     ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 15, 2013

             Before: SMITH, FISHER and CHAGARES, Circuit Judges.

                                (Filed: August 13, 2013)
                                     ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

      Charles Sechler appeals from his judgment of sentence in the Middle District of

Pennsylvania, challenging its reasonableness and raising an Eighth Amendment

challenge. We will affirm.
                                              I.

       We write principally 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.

       Sechler was convicted on July 30, 2007 of conspiracy to distribute and to possess

with intent to distribute more than 500 grams of methamphetamine and in excess of 100

kilograms of marijuana in violation of 21 U.S.C. § 846; attempt to manufacture marijuana

in violation of 21 U.S.C. § 846; and possession of equipment to manufacture marijuana in

violation of 21 U.S.C. § 843(a)(6).

       The presentence report indicated that Sechler’s offenses involved at least 15

kilograms of methamphetamine and 100 kilograms of marijuana, leading to a base

offense level of 38. See U.S.S.G. § 2D1.1. Sechler had a criminal history category of I.

After applying a two-level gun enhancement, U.S.S.G. § 2D1.1(b)(1), a four-level

conspiracy leadership enhancement, U.S.S.G. § 3B1.1(a), and a two-level obstruction of

justice enhancement, U.S.S.G. § 3C1.1, the report calculated Sechler’s total offense level

at 46, which resulted in an advisory Sentencing Guidelines range of life in prison.

       Sechler objected to the determined amount in possession, contending that trial

testimony had established that the offense involved 14.55 kilograms of methamphetamine

and 70.90 kilograms of marijuana, making the base offense level 36 instead of 38. He

further objected to the firearm and conspiracy leadership enhancements, arguing that they


                                              2
were based on insufficient evidence. Sechler also argued that his sentence was overly

harsh based on several factors under 18 U.S.C. § 3553(a), including a lack of a criminal

history, his liver disease, and a lower risk of recidivism. He also sought a downward

departure for his “reduced mental capacity” and his “advanced” liver disease. See

U.S.S.G. §§ 5K2.13 and 5K2.0.

       The District Court overruled Sechler’s objections and denied Sechler’s variance

and departure requests, noting that Sechler was a “very manipulative individual” and that

the Bureau of Prisons could adequately treat Sechler’s Hepatitis C and liver disease.

App. at 56-57. The District Court sentenced Sechler to a term of life imprisonment,

followed by five years of supervised release, and ordered him to pay a $300 special

assessment. Sechler timely appealed to this Court.

                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

       We apply an abuse of discretion standard when reviewing a sentencing decision.

United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008) (citations omitted). We review a

district court’s sentencing decision for significant procedural error, which could include

“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.”


                                             3
Gall v. United States, 552 U.S. 38, 51 (2007). We review “a district court’s factual

findings in connection with a Guidelines enhancement for clear error.” United States v.

Zats, 298 F.3d 182, 185 (3d Cir. 2002). Those findings must be supported by a

preponderance of the evidence. United States v. McDowell, 888 F.2d 285, 291 (3d Cir.

1989).

         We review unpreserved Eighth Amendment challenges for plain error. United

States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002). When evaluating proportionality

challenges to sentences, we defer to the legislature in determining the punishments for

crimes. United States v. MacEwan, 445 F.3d 237, 247 (3d Cir. 2006).

                                             III.

         On appeal, Sechler argues (A) that the District Court procedurally erred in

calculating his Guidelines range; (B) that the District Court selected an unreasonably

harsh sentence and unreasonably refused to depart from the Guidelines range; and (C)

that his life sentence violates the Eighth and Fourteenth Amendments.1 Each of these

arguments fails.




         1
         Sechler filed a supplemental motion pursuant to Fed. R. App. P. 28(j),
contending that Alleyne v. United States, 133 S. Ct. 2151 (2013), requires Sechler’s level
enhancements to go to a jury. He is incorrect. Because no mandatory minimum penalty
was at issue, Alleyne is inapplicable to this case.


                                              4
                                            A.

       Sechler contends that the District Court procedurally erred when it calculated his

base offense level at 38 because a “total preponderance of the credible corroborated

evidence” presented at trial indicated that he was responsible for an amount of drugs

warranting a base offense level of 36, Appellant’s Br. at 19, and because the District

Court inappropriately applied enhancements.

       We hold Sechler accountable for the drugs distributed by his coconspirators in a

jointly-undertaken criminal scheme that was reasonably foreseeable by the defendant.

See United States v. Williams, 917 F.2d 112, 114 (3d Cir. 1990) (quoting U.S.S.G.

§ 1B1.3 app. n. 1). Estimation is sometimes necessary in calculating drug amounts.

United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993). Here, the evidence

showed, among other things, that the drug conspiracy, which began with marijuana and

later included methamphetamine, operated from 1995 to 2003. Numerous pieces of

evidence supported the District Court’s calculation, including one of Sechler’s

coconspirators’ testimony that he had received approximately 50 pounds of

methamphetamine from Sechler during their criminal relationship. Supp. App. at 154.

Additional evidence demonstrated that another of Sechler’s coconspirators dealt

extensively in methamphetamine and marijuana – distributing at least 9 kilograms of

methamphetamine to a sub-distributor. The jury found Sechler guilty of engaging in a

methamphetamine and marijuana trafficking conspiracy. The drug distributions by


                                             5
Sechler’s coconspirators were done in furtherance of that conspiracy and were reasonably

foreseeable by Sechler. We therefore find no support for the conclusion that the District

Court clearly erred in holding Sechler responsible for at least 15 kilograms of

methamphetamine and 100 kilograms of marijuana.

       Sechler also argues that the two-level firearm enhancement and four-level

conspiracy leadership enhancement were not supported by a preponderance of the

evidence. The firearm enhancement applies when a “weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1

app. n. 11; see United States v. Thorton, 306 F.3d 1355, 1358 (3d Cir. 2002) (holding that

a coconspirator’s possession of a handgun during the commission of a drug deal and his

admission that the defendant also possessed firearms constituted sufficient evidence to

uphold a two-level firearm enhancement). We have reviewed the record and agree with

the District Court that the firearm enhancement was warranted by a preponderance of the

evidence. Government agents saw Sechler in possession of a firearm near drugs. Supp.

App. at 343-44. Additionally, two of his coconspirators possessed guns in relation to

their drug conspiracy, and one of them testified that Sechler possessed numerous guns.

Supp. App. at 147-48.

       Furthermore, we find no clear error in the District Court’s conclusion that Sechler

was “an organizer or leader of a criminal activity that involved five or more participants

or was otherwise extensive.” U.S.S.G. § 3B1.1(a); see also United States v. Phillips, 959


                                             6
F.2d 1187, 1191 (3d Cir. 1992) (determinative factors include “the exercise of

decisionmaking authority, the nature of the participation in the commission of the

offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of

the crime, the degree of participation in planning or organizing the offense, the nature and

scope of the illegal activity, and the degree of control and authority exercised over

others” (citations omitted)). Here, the conspiracy included at least eleven members.

Sechler provided leadership by directing the actions of couriers, obtaining the services of

a drug supplier in California, traveling to the Netherlands for marijuana seeds, fronting

drugs to sub-distributors, and threatening coconspirators if they ever decided to turn

against him.

       Therefore, the District Court did not err in applying the two-level firearm

enhancement and the four-level conspiracy leadership enhancement.

                                             B.

       Sechler next argues that his sentence is unreasonably harsh and in conflict with the

§ 3553(a) factors in light of Sechler’s status as a first-time offender, his mental problems,

and his health problems. After thoroughly reviewing the record, we agree that the

District Court “gave meaningful consideration to the § 3553(a) factors.” United States v.

Cooper, 437 F.3d 324, 329 (3d Cir. 2006). We find no support for the argument that

Sechler’s sentence was illogical or inconsistent with those factors. Id. at 330.




                                              7
       Sechler next argues that the District Court failed to consider downward departures.

If the District Court understood its authority to depart but exercised its discretion not to

do so, we lack jurisdiction over the issue. United States v. Stevens, 223 F.3d 239, 247 (3d

Cir. 2000). The record demonstrates that the District Court considered Sechler’s

departure arguments. The court reviewed written submission from Sechler on the issues,

App. at 59, and listened to Sechler’s motions during sentencing. App. at 53-59. The

court acknowledged Sechler’s arguments and found that they did not merit a departure.

App. at 59. In light of the District Court’s awareness of its authority to depart, we lack

jurisdiction to hear claims regarding its decision not to do so.

                                              C.

       Finally, Sechler contends that his life sentence violates his right to be free from

cruel and unusual punishment under the Eighth and Fourteenth Amendments, but fails to

provide any evidence that his crimes are grossly disproportionate to his life sentence.

Given that Sechler’s sentence is not grossly disproportionate when balanced against the

gravity of his offenses, the District Court did not violate the Eighth Amendment by

sentencing him to life imprisonment. See Harmelin v. Michigan, 501 U.S. 957, 960

(1991) (holding that “life imprisonment without parole . . . is not grossly disproportionate

to . . . [the] crime of possessing more than 650 grams of cocaine”).

                                             IV.

       For the reasons set forth above, we will affirm the District Court’s judgment.


                                              8
