                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 10-3244
                                     __________

                          UNITED STATES OF AMERICA

                                          v.

                                 KENNETH CHAN,

                                                   Appellant
                                     __________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Criminal No. 1-09-cr-00711-001)
                    District Judge: The Honorable Noel L. Hillman
                                       __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 26, 2011

           BEFORE: FUENTES, FISHER, and NYGAARD, Circuit Judges.

                                (Filed: June 20, 2011)
                                     __________

                             OPINION OF THE COURT
                                   __________

NYGAARD, Circuit Judge.

      While serving an eighty-seven month sentence at the Federal Correctional Facility

at Fort Dix, New Jersey, Appellant Kenneth Chan was discovered to have contraband on

his person during a routine pat-down search. Chan was subsequently indicted by a



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federal grand jury for the possession of marijuana in a federal correctional facility, a

violation of 18 U.S.C. § 1791(a)(2) and (b)(3). Based on this charge, Chan was facing a

statutory maximum term of five-years’ imprisonment, consecutive to the prison term he

was serving. After various pretrial machinations not entirely relevant here, Chan pleaded

guilty to the lesser offense of possessing tobacco in a federal correctional facility. See 18

U.S.C. § 1791(a)(2), (b)(3). This offense is a Class B misdemeanor and called for a

maximum six-month term of imprisonment.

       The District Court, Hillman, J., sentenced Chan to three-months imprisonment, to

run consecutively to Chan’s remaining sentence for drug-trafficking. Chan has timely

appealed, arguing that his sentence was “unreasonable.” We will affirm.

                                               I.

       A Class B misdemeanor is an offense for which the maximum sentence is not

greater than six months. Under U.S.S.G. § 1B1.9, the guidelines do not apply to Class B

misdemeanors. United States Sentencing Commission Guidelines Manual, § 1B1.9,

comment 1. Additionally, § 1B1.9 comment 2 states explicitly that sentences for Class B

misdemeanors may be imposed either consecutively or concurrently with sentences for

other counts.

       Our review of sentences imposed for Class B misdemeanors must be conducted

under the pre-guidelines standard applicable to those offenses. In re Solomon, 465 F.3d

114, 120 (3d Cir. 2006). This standard of review is “highly deferential.” Id.      That is to

say, if “a sentence is within the statutory limitation and there is no defect in the

sentencing procedure,” we will “not interfere with the trial court’s discretion as to the


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sentence imposed.” United States v. Logar, 975 F.2d 958, 960 (3d Cir. 1992) (citing

United States v. Felder, 706 F.2d 135, 137 (3d Cir. 1983)). A sentence imposed by a

federal district judge upon a criminal defendant, if within statutory bounds, is therefore

typically not subject to review absent a “gross abuse of discretion.” See, e.g., United

States v. DeBardeleben, 740 F.2d 440, 447 (6th Cir.), cert. denied 469 U.S. 1028 (1984).

                                              II.

       Here, there is no question that the District Court was empowered to impose the

sentence of record. Indeed, Chan does not argue that the sentence was illegal,

unconstitutional or defective. Nor does he argue that his sentence falls outside the

statutory maximum. Instead, Chan argues that the District Court did not give proper

weight to the administrative penalties given Chan, the need for deterrence, the likelihood

of Chan’s rehabilitation and the impact incarceration would have on Chan’s

rehabilitation. Chan also maintains that the District Court failed to adequately consider

his criminal history and cooperation with the authorities. The District Court made its

sentencing determination only after entertaining testimony from all sides concerning the

nature of the violation as well as the judicial response that would be in the best interest of

Chan and the community.1


1
 Indeed, the District Court actually did more than it had to here. We have “consistently
held under pre-Sentencing Guideline law that the district court was not required to set
forth on the record the reasons for its selection of a particular sentence.” United States v.
Logar, 975 F.2d 958, 960-61 (3d Cir. 1992) (citing United States v. Smith, 839 F.2d 175,
181 (3d Cir.1988); United States v. Bacheler, 611 F.2d 443, 450 (3d Cir.1979); United
States v. Del Piano, 593 F.2d 539, 540 (3d Cir.) (per curiam), cert. denied, 442 U.S. 944
(1979)).


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       On appeal, Chan cites to nothing in the record or the law to support the assertion

that, under these circumstances, the District Court’s decision amounted to a gross abuse

of discretion and our independent review of the record does not reveal otherwise. The

appeal lacks merit and we have no difficulty concluding that the district court did not

abuse its discretion by imposing a three-month sentence on Chan.

       We will affirm the sentence.




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