                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 09-4512
                                     _____________


                            UNITED STATES OF AMERICA

                                             v.

                                   MIKELL NESBITT,

                                             Appellant

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                    (No. 09-cr-00181)
                         District Judge: Hon. Harvey Bartle, III

                                Submitted March 18, 2011

               Before: BARRY, CHAGARES, and ROTH, Circuit Judges.

                                 (Filed: March 18, 2011)

                                      ____________

                                       OPINION
                                     ____________

CHAGARES, Circuit Judge.

       Defendant Mikell Nesbitt appeals the sentence imposed upon him by the District

Court after he pleaded guilty to one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). For the reasons set forth below, we will affirm.
                                             I.

       Because we write solely for the benefit of the parties, we will only briefly recite

the essential facts. On August 19, 2009, Nesbitt pleaded guilty to a one-count indictment,

charging him with possession of a firearm as a previously convicted felon. During his

plea colloquy, Nesbitt admitted that on October 25, 2008, he visited a female

acquaintance who is the legal owner of two guns. While in her home, he stole her Glock

9-millimeter pistol from underneath her bed. Nesbitt was taken into custody on October

28, 2008, after Philadelphia police recovered this gun during the execution of search and

arrest warrants at his residence. Nesbitt waived his rights under Miranda v. Arizona, 384

U.S. 436 (1966), and admitted stealing the Glock pistol.

       The Probation Office prepared a Presentence Investigation Report (“PSR”), in

which it determined that, pursuant to the United States Sentencing Guidelines (the

“Guidelines”), the base offense level was 24. Nesbitt was subject to a two-level

enhancement, however, because the firearm was stolen. Taking into account a three-

level reduction for acceptance of responsibility, the total offense level was 23. The PSR

additionally concluded that Nesbitt qualified for a criminal history category of V, based

upon his extensive criminal record, which included two drug-trafficking convictions, as

well as convictions for robbery, drug possession, vandalism, and driving under the

influence. Nesbitt’s advisory Guidelines sentence range was, therefore, 84 to 105 months

of imprisonment. Both parties agreed that this was the appropriate advisory Guidelines

range. At the time of sentencing, Nesbitt was serving a state sentence of eight to sixteen

years of imprisonment for two armed robberies, to which he had also pleaded guilty.

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       At the sentencing hearing, the District Court first heard from the Government.

The Government drew attention to the fact that Nesbitt began committing crimes at the

age of 16 and that during the month of October 2008, at the age of 31, Nesbitt had not

only committed the crime at issue in this case, but also had committed an armed home

invasion robbery, during which he sexually touched the homeowner, and an armed

robbery of a 7-Eleven convenience store, in which he made the store clerk kneel on the

stockroom floor while Nesbitt held a gun to the clerk’s head and demanded money. At

the time of these offenses, Nesbitt was on bail for two separate crimes — retail theft and

vandalism.

       The Government also reminded the District Court that Nesbitt had attempted to

provide assistance to the authorities during a proffer session. Although the assistance fell

short of that which would warrant a Government motion for a downward departure, the

Government suggested that the District Court could consider it in mitigation under 18

U.S.C. § 3553(a). Nonetheless, based upon Nesbitt’s extensive criminal record, his

escalating level of violence, and the need for specific and general deterrence, the

Government asked the District Court to impose a sentence at the top of the advisory

Guidelines range, which would be served consecutively to the state sentence.

       The District Court then heard from the defense. Nesbitt called his mother as a

witness on his behalf. She pleaded for leniency, stating that Nesbitt was extremely

dedicated to his children and provided care and support to the best of his ability to his

extended family. She stated that Nesbitt committed these crimes because he “just got

mixed up, just got stressed out, he was so stressed not being able to support his children

                                              3
and his family.” Appendix (“App.”) 55. She testified that another judge threatened to

incarcerate Nesbitt if he continued to fail to meet his child support obligations. Thus,

Nesbitt “was trying to get the money from somewhere.” App. 54. She stated that Nesbitt

had started smoking “wet”1 and that he wasn’t acting like himself. App. 54-55. During

this testimony, the District Court interjected on occasion to ask clarifying questions.

       Nesbitt’s counsel argued that Nesbitt had a very long history of drug abuse that

was, in essence, a way of self-medicating otherwise untreated depression. Counsel

suggested that the combination of drugs, depression, and a need for money led Nesbitt to

commit the crime for which he was convicted.

       Counsel further argued that Nesbitt should not receive a lengthy federal sentence

because, had Nesbitt been prosecuted in state court for the firearm offense, the additional

count may not have caused a significant increase in the sentence that he received for the

armed robberies. Defense counsel also summarized the information that Nesbitt had

provided to the Government in an attempt to assist with other investigations, arguing that

these efforts on Nesbitt’s part militated in favor of a lenient sentence.

       Ultimately, Nesbitt’s counsel asked the court to impose either a sentence at the

very bottom of the advisory Guidelines range to run largely concurrently to Nesbitt’s

state sentence or to impose a sentence well below the advisory Guidelines range — two

and one-half years — to run consecutively to his state sentence. Before imposing its

sentence, the District Court engaged defense counsel in a line of questioning regarding

1
 “Wet” is a slang term for a cigarette made from a mixture of marijuana and
Phencyclidine (“PCP”).

                                              4
the impact that a concurrent, as opposed to a consecutive, sentence might have on

Nesbitt’s ability to receive parole on his state sentence.

        Finally, the District Court heard from Nesbitt himself, who apologized for his

criminal actions. Nesbitt explained: “I lost my job which caused me not to be able to

care for my children, my mother and my grandmother, and my bills…. [T]hat hurt my

pride and my ego. . . . I fell weak to drugs.” App. 73.

        After hearing from the parties, the District Court properly calculated the applicable

advisory Guidelines sentence range of 84 to 105 months, then imposed a sentence at the

very bottom of that range to run consecutively with his state sentence, stating in pertinent

part:

        [I]n fashioning a sentence, I must fashion one that is sufficient but not greater than
        necessary. And under Title 18 United States Code Section 3553(a), I must take
        into account certain factors before determining your sentence. Those factors
        include the nature and circumstance of the offenses, and history and characteristics
        of you, the defendant; the seriousness of the offense; the need to promote respect
        for the law; the need to provide a just punishment for the offense; the need to
        afford adequate deterrence to criminal conduct; the need to protect the public from
        further crimes of you the defendant.

        Needless to say, Mr. Nesbitt, the crime for which you have pleaded guilty is a
        serious one. A firearm in possession of a convicted felon is a menace to the city of
        Philadelphia in this region, and to all the citizens who live here. The safety of the
        community is a very critical issue these days, and people such as yourself who are
        carrying firearms undermine the safety of our community, and indeed the general
        welfare of our community. So there’s no doubt that your crime is a serious
        one. . . .

        You have a very long criminal history for a man who’s 31 years old. Not only do
        you have several drug convictions, but you also have two robbery convictions. In
        each case, you possessed a firearm. . . .

        Your mother talked about your children, how important they are to you. You have
        to remember that that woman who faced a gun and the clerk in the convenience

                                              5
      store who faced a gun on his head, they’re also the children of people. And you
      weren’t thinking about that, and I can’t imagine you would be happy if someone
      did that to one of your children. . . .

      You didn’t learn your lesson when you were sentenced previously in the Court of
      Common Pleas for your drug offenses, and then the crimes escalated and turned
      into robbery.

      Society has to be protected from you, Mr. Nesbitt. And under the totality of the
      circumstances, I’m going to commit you into the custody of the Attorney General
      of the United States for a period of imprisonment of 84 months. That sentence
      will be consecutive to your sentence by the judge of the Court of Common
      Pleas. . . .

      It’s truly a sad day, Mr. Nesbitt, and I feel for your mother who was here to
      support you and who did her best. Unfortunately, sometimes in these sentencing
      cases, the family members are punished just as much as the person who commits
      the crime. That’s an unfortunate consequence, and there’s noting that we can do
      about that. So think about that as you serve your sentence. And I hope when you
      are finally released, you will become a law-abiding citizen and take care of your
      children and be a credit to society. But until that time, you will have to serve your
      sentence.

App. 74-78.

                                            II.

      The District Court properly exercised jurisdiction over this criminal matter

pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the District Court’s final

judgment of sentence pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

      Pursuant to the mandate of United States v. Booker, “[t]he courts of appeals

review sentencing decisions for unreasonableness.” 543 U.S. 220, 264 (2005).

According to our post-Booker precedent, district courts must follow a three-step

sentencing process:

      (1) Courts must continue to calculate a defendant's Guidelines
      sentence precisely as they would have before Booker.

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       (2) In doing so, they must formally rule on the motions of both
       parties and state on the record whether they are granting a departure
       and how that departure affects the Guidelines calculation, and take
       into account our Circuit's pre-Booker case law, which continues to
       have advisory force.

       (3) Finally, they are required to exercise their discretion by
       considering the relevant § 3553(a) factors, in setting the sentence
       they impose regardless whether it varies from the sentence
       calculated under the Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (citations, quotations, and

brackets omitted). On appeal, Nesbitt takes issue with the District Court’s consideration

of the relevant § 3553(a) factors at the third step of the sentencing process. Nesbitt

contends that the District Court’s failure to consider essential aspects of his history and

character, as required by 18 U.S.C. § 3553(a)(1), rendered the sentence imposed upon

him procedurally unreasonable.

                                             III.

       We have made clear that a sentence “will be upheld as reasonable if the record as a

whole reflects rational and meaningful consideration of the factors enumerated in 18

U.S.C. § 3553(a).” United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006)

(quotation omitted). This “standard requires a deferential review of the record developed

by the district court to determine whether the final sentence, wherever it may lie within

the permissible statutory range, was premised upon appropriate and judicial consideration

of the relevant factors.” Id.

       “After settling on the appropriate sentence, [the District Court] must adequately

explain the chosen sentence to allow for meaningful appellate review. In other words, it

                                              7
is not enough for the district court to carefully analyze the sentencing factors. A separate

and equally important procedural requirement is demonstrating that it has done so.”

United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010) (quotations and citation

omitted). As such, the sentencing judge is obligated to “set forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338,

356 (2007) (citing United States v. Taylor, 487 U.S. 326, 336-37 (1988)). Still, the

District Court need not make explicit findings as to each of the §3553(a) factors “if the

record otherwise makes clear that the court took the factors into account.” United States

v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007). A brief discussion will suffice where it is

apparent from the record that the District Court “determined that defendant’s arguments

were simply insufficient to warrant a below-Guidelines sentence.” United States v.

Olfano, 503 F.3d 240, 245 (3d Cir. 2007).

       At sentencing, defense counsel argued in favor of a sentence far below the

advisory Guidelines range, urging the District Court to consider Nesbitt’s personal

history and characteristics — his depression, his lengthy history of drug abuse, his

commitment to his family, and his efforts to assist authorities in other investigations — in

mitigation. On appeal, Nesbitt argues that the District Court’s sentence was procedurally

unreasonable because it ignored these potentially mitigating factors, instead improperly

emphasizing the seriousness of the present offense and Nesbitt’s extensive criminal

history. We disagree.



                                             8
       The record summarized above makes clear that the District Court heard and

considered Nesbitt’s arguments at sentencing. Indeed, the District Court engaged

Nesbitt’s mother with questions pertaining to her testimony about the defendant’s

personal circumstances. In our view, such a record does not suggest that the District

Court disregarded or ignored the evidence in favor of leniency; rather, it demonstrates

that the District Court took account of the mitigating evidence and ultimately came to a

reasoned, albeit partially implicit, conclusion that, despite Nesbitt’s arguments to the

contrary, his conduct over the years was that of a serious recidivist, not that of a person

who had merely lost his way, and that certain § 3553(a) factors — namely, the

seriousness of the offense, the need for individual deterrence, and the interest in

protecting the public from the defendant’s future crimes — substantially outweighed the

potentially mitigating factors that Nesbitt pointed to in support of a below-Guidelines

sentence. In other words, in finding that a sentence at the bottom of the Guidelines range

was sufficient, but not greater than necessary to effect the appropriate amount of

deterrence and to reflect the seriousness of the crime, the District Court implicitly

expressed a reasoned judgment that the arguments it had heard and considered in favor of

leniency “were simply insufficient to warrant a below-Guidelines sentence.” Olfano, 503

F.3d at 245. The District Court having premised the sentence on appropriate and judicial

consideration of the relevant factors, we cannot conclude that the sentence imposed upon

Nesbitt was procedurally unreasonable.

                                             IV.



                                              9
      For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.




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