                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-10-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2789




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                                                  NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 05-2789


              UNITED STATES OF AMERICA

                               v.

                  KENYATTA PINKSTON,
                               Appellant
                (D.C. Crim. No. 03-cr-00342-2)


                         No. 05-2790


              UNITED STATES OF AMERICA

                               v.

                  MAWULDA PINKSTON,
                              Appellant
                (D.C. Crim. No. 03-cr-00342-1)


 APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE DISTRICT OF NEW JERSEY
District Judge: The Honorable Garrett E. Brown, Jr., Chief Judge


          Submitted Under Third Circuit LAR 34.1(a)
                       June 26, 2007


  Before: BARRY, FUENTES, and JORDAN, Circuit Judges

               (Opinion Filed: August 10, 2007)
                                        OPINION




BARRY, Circuit Judge

       Kenyatta Pinkston and Mawulda Pinkston were sentenced to terms of

imprisonment of 212 months and 190 months, respectively, and they appeal. The District

Court imposed the sentences after we affirmed the convictions but remanded for re-

sentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v.

Pinkston, 126 Fed. Appx. 537 (3d Cir. 2005). We will affirm.    1



                                             I.

       The Pinkston brothers, after an eight-day bench trial, were convicted of one count

of conspiracy to distribute and possession with intent to distribute more than fifty grams

of crack cocaine and seven counts of distribution and possession with intent to distribute

either powder cocaine or crack cocaine, all in connection with a drug distribution business

they operated in Trenton, New Jersey.2 The District Court initially sentenced Kenyatta to


1
  The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
2
   The Pinkstons were identified as the regular suppliers of marijuana, cocaine, and
ecstacy for the government cooperator, a local drug dealer. The charges stemmed from a
total of seven controlled drug transactions – four of crack cocaine and three of powder
cocaine – by one or both of the Pinkstons during a three week period. The total amount
of drugs involved in the transactions was 126.9 grams of crack cocaine and 176.3 grams
of powder cocaine.


                                             2
235 months imprisonment and Mawulda to 210 months imprisonment. On remand, and

in support of lower sentences, the Pinkstons primarily contended that Booker allowed the

District Court to consider the crack cocaine/powder cocaine differential as an equitable

consideration, and pointed to the Sentencing Commission’s recommendation to Congress

that it reexamine and adjust the differential.3 They also argued that, under Booker, a two-

point enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) should not apply because the

District Court did not find possession of a weapon beyond a reasonable doubt.

       The District Court, in response, noted concerns with sentencing disparities among

the class of those convicted of crack cocaine offenses, as well as Congress’s policy

decision, on more than one occasion, to reject the Sentencing Commission’s

recommendation to adjust the crack cocaine/powder cocaine ratio, and stated: “I certainly

should consider those issues. I’m not bound by them. I don’t have to do it, but looking at

the wisdom of the Congress . . . [and] the sentencing commission, I think we should have

predictability and proportionality.” App. 50. It, thus, rejected the arguments addressed to

the crack cocaine/powder cocaine differential,4 continuing to believe that the sentences it

3
  All other factors being equal, the statutory mandatory minimum sentence for a
conviction for dealing 5 grams of crack cocaine is the same as that for a conviction for
dealing 500 grams of powder cocaine. United States v. Gunter, 462 F.3d 237, 240 (3d
Cir. 2006). This 100:1 ratio is reflected throughout the guidelines’ suggested sentencing
ranges. See id. at 240 n.4.
4
  The District Court rejected as well the argument addressed to the weapon enhancement,
noting that even if the beyond a reasonable doubt standard applied, which it did not, the
evidence satisfied that standard. We reject the Pinkstons’ “enhancement” argument,
which they reraise on appeal to us, without further discussion.

                                             3
originally imposed were reasonable and that leniency based on the “unfairness” of the

crack cocaine penalty was not deserved. Nevertheless, the Court, crediting the letters

from the Pinkstons’ friends and family and the support of their family, believed that more

lenient sentences would, nonetheless, serve the interests of society and resentenced the

Pinkstons to near the bottom of the relevant guideline ranges. We review those sentences

for reasonableness. United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en banc).

We exercise plenary review over questions of law, including the interpretation of the

guidelines; where factual determinations were made, we review for clear error. Id.

       Post-Booker, a district court must undertake a three-step sentencing process. It

must: (1) calculate, as before, the correct guidelines sentence, (2) explicitly rule on all

motions, including departure motions, and (3) exercise its discretion by considering the

relevant factors set forth in 18 U.S.C. § 3553(a). Gunter, 462 F.3d at 247. The crack

cocaine/powder cocaine differential arguments which the Pinkstons bring before us

implicate the District Court’s compliance with the last step.

       Mawulda Pinkston argues on appeal that the District Court erred by “categorically

refusing” to consider the Sentencing Commission’s finding that the 100:1 ratio between

crack cocaine and powder cocaine is unjustified and erred in refusing to independently

evaluate the seriousness of crack cocaine offenses based solely on the fact that Congress

had failed to act on the Commission’s findings and recommendations. Kenyatta Pinkston

faults the District Court for believing itself bound to impose a sentence within the


                                               4
guidelines range merely because Congress said so and, in believing itself so bound,

elevating the crack cocaine element of the offenses over all other concerns and the 18

U.S.C. § 3553(a) factors. Indeed, continues Kenyatta, the only goal of sentencing the

Court considered was incarceration and, thus, he received a sentence greater than was

necessary. He contends, finally, that we were wrong when we said that a sentence within

the guidelines range is more likely to be reasonable than one outside that range, see

United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), and he would have us say, instead,

that post-Booker, a guideline range is nothing more than a “suggestion.” (Kenyatta

Pinkston Br. at 24).5 We summarily reject this invitation.

       The Pinkstons’ remaining contentions result, in their view, in but one conclusion:

the sentences were too long and, thus, were unreasonable. But the various contentions

which enable them to reach this conclusion cannot withstand scrutiny. The District Court

did, for example, consider what the Sentencing Commission had unsuccessfully asked

Congress to do and made it quite clear how it viewed the seriousness of the Pinkstons’

offenses separate and apart from what Congress had done or failed to do – the Pinkstons

were “multi-substance, substantial drug dealers, who presented a clear and present danger

to the community . . . and do so at this time,” App. 47; they “imperiled the community.”

Id. at 48. The Court found, moreover, that the crack cocaine differential was a “reasoned,

   5
     Because it was not raised before the District Court, we do not consider Kenyatta’s
argument, which we have rejected before, that the crack cocaine guideline has contributed
to unwarranted racial disparity.


                                             5
reasonable policy choice by the Congress” reflecting Congress’s view – which has been

“steadfast” – that crack cocaine dealers should be sentenced more harshly than other drug

offenders, a view in which the Court concurred. Id. at 50-51. The Court also recognized

the advisory nature of the guidelines, including the crack cocaine provision; recognized

that it had the discretion to vary from the guidelines; and recognized, even in advance of

Gunter, that it could and should consider the crack cocaine/powder cocaine differential as

part of its consideration of § 3553(a) factors. It believed, however, after considering all

of the relevant § 3553(a) factors including but not limited to the crack cocaine provision,

that each of the Pinkstons’ guideline ranges, as calculated, was appropriate and, although

exercising leniency within those ranges, declined to impose sentences below them.

       Because the District Court acted “reasonably in imposing the resulting

sentence[s],” Cooper, 437 F.3d at 329, after exercising its discretion by considering the

relevant § 3553(a) factors, we will affirm the judgments of the District Court.




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