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


4-3-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4119




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Recommended Citation
"USA v. Oliver" (2007). 2007 Decisions. Paper 1368.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1368


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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 05-4119


                                     UNITED STATES

                                              v.

                                    GEORGE OLIVER,

                                                   Appellant



                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania

                                  (D.C. No. 02-cr-00757)

                         District Judge: Honorable Stewart Dalzell



                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     March 2, 2007

           Before: SCIRICA, Chief Judge, MCKEE, and NOONAN*, Circuit Judges.

                                   (Filed: April 3, 2007)

                                  OPINION OF THE COURT



       *
         The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
MCKEE, Circuit Judge.

       George Oliver appeals the sentence that was imposed following his conviction for

a single count of possessing cocaine with intent to distribute in violation of 21 U.S.C.

§841(a)(1). For the reasons that follow, we will affirm.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not set forth the factual or historical background except insofar as may be helpful to

our brief discussion. Oliver argues that the district court erred in determining his criminal

history without submitting that issue to the jury, that the sentence that was imposed was

unreasonable, and that the court erred in not submitting the question of drug quantity to

the jury pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). The arguments require

only the briefest discussion.

       Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), it is clear that the sentencing guidelines are advisory. Moreover, given our post-

Booker jurisprudence, it is equally clear that the sentencing court may make factual

determinations in applying the guidelines so long as the resulting sentence is reasonable

and the sentencing factors set forth at 18 U.S.C. §3553(a) are given proper consideration.

See United States v. Grier, 475 F.3d 556 (3d. Cir. 2006) (en banc), and United States v.

Cooper, 437 F3d 324, 329-30 (3d. Cir. 2006).

       In United States v. Oliver, 398 F.3d 236, 238-40 (3d. Cir. 2006), we rejected the


                                              2
precise Sixth Amendment claims based upon a trial court determining drug weight and

criminal history that Oliver makes here. We again reject those arguments.

       Defense counsel also claims that the sentence that was imposed was unreasonable.

The argument which counsel makes is as forceful as it is eloquent. Counsel notes the

actuarial impact of a sentence of 210 months on someone Oliver’s age, and he suggests

that the sentence is “a virtual death sentence.” Appellant’s Br. at 15. Counsel also paints

a portrait of someone who has been enslaved by drug usage throughout his entire life and

suggests, no doubt with no small amount of justification, that “it is a miracle...that his

addiction hasn’t killed him.” Id at 14. It is perhaps with only a slight bit of hyperbole

that counsel claims that Oliver “has never met a controlled substance he didn’t like.” Id

at 14. Counsel then summarizes the tragedy of Oliver’s life as follows: “[h]e is Now

battered, bruised and bowed, having lost the sight in one eye while engaged in a drunken

argument over a check which ended with acid being thrown in his face.” Id. at 14.

       Although we neither minimize nor ignore the force of counsel’s arguments or the

human tragedy they portray, we must nevertheless limit our inquiry to determining if the

sentencing court properly considered the sentencing factors under §3553(a); and if so,

whether the resulting sentence is reasonable.

              The question is not how we ourselves would have resolved
              the factors identified as relevant by §3553(a) . . . nor what
              sentence we ourselves ultimately might have decided to
              impose on the defendant.


                                              3
Cooper, 437 F.3d at 330. Rather, we must decide whether the district court imposed the

sentence it did for reasons that are logical and consistent with the factors set forth in

§3553(a). Id at 329.

       Here, the district court explained its concern for the protection of society, as well

as the need to deter others from “peddling drugs.” App. 175. The court considered the

guidelines, but clearly did not treat them as mandatory. The resulting sentence of 210

months, although lengthy (perhaps even severe given the defendant’s age) was certainly

not unreasonable. It is clear from the transcript of the sentencing proceeding that the

sentencing court properly applied § 3553(a), and considered each of the factors the court

deemed relevant to Oliver’s circumstances and background, as well as the characteristics

of the offense.

       Accordingly for the reasons set forth above, we will affirm the judgment of

sentence. In doing so, we pause to note that defense counsel, Barnaby C. Wittels, of the

firm of LaCheen, Dixon, Wittels & Greenberg, is representing Mr. Oliver pro bono. We

express our gratitude to Mr. Wittels and his firm for agreeing to represent Mr. Oliver

without compensation, and for the forceful and eloquent brief which was submitted on

Mr. Oliver’s behalf.



____________________________



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