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


8-22-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2712




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT



                                    No. 06-2712


                          UNITED STATES OF AMERICA

                                          v.

                              KEVIN ALAN BONNER,

                                                  Appellant



                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                              (D. C. No. 05-cr-00069)
                       District Judge: Hon. Arthur J. Schwab


                      Submitted under Third Circuit LAR 34.1(a)
                                  on May 18, 2007


                      Before: FISHER and ROTH, Circuit Judges
                               RAMBO*, District Judge

                          (Opinion filed : August 22, 2007)




      *Judge Sylvia H. Rambo, United States District Judge, for the Middle District of
Pennsylvania, sitting by designation.
                                        OPINION


ROTH, Circuit Judge:

       Kevin Alan Bonner appeals his judgment of sentence on the ground that the District

Court failed to rule on his motion for downward departure. Bonner contends that the failure

to rule on this motion was a prejudicial procedural error affecting his sentence.

I. Factual and Procedural History

       On May 23, 2003, Bonner was arrested for the possession of more than five grams of

crack cocaine and selling this crack cocaine at a local bar. Bonner pleaded guilty on

February 3, 2006, to one count of possession with intent to distribute and distribution of five

or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii).

This was not Bonner’s first conviction of a drug offense. In a span of two years, between

1992 and 1994, Bonner was convicted of six drug related offenses. He pleaded guilty to all

of those charges in a single consolidated plea and sentencing hearing.

       Under U.S.S.G. § 2D1.1, Bonner’s instant offense carries an adjusted offense level

of 23, and an advisory guidelines sentence of 84 to 105 months. The mandatory minimum

sentence for Bonner’s violation of § 841(a)(1) is 120 months. Because of his previous

convictions, Bonner qualified as a career offender with a category VI criminal history under

U.S.S.G. § 4B1.1. This status increased the offense level to 34, resulting in a guidelines

sentence of 262 to 327 months.


                                              2
       Before sentencing, Bonner requested a downward departure arguing that his criminal

history was overstated. Bonner also asked the court to consider the 100-to-1 crack to powder

cocaine sentencing disparity in imposing a sentence sufficient but not greater than necessary

to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2).

       In its written memorandum setting forth its tentative findings and rulings, the District

Court agreed that Bonner’s his criminal history was “at least somewhat overstated within the

meaning of Shoupe [35 F.3d 835 (3d Cir. 1994)].”

       At the sentencing hearing, after hearing arguments from both sides regarding Bonner’s

status as a career offender and motion for downward departure, the District Court imposed

a sentence of 180 months. In regard to Bonner’s criminal history and to the § 3553(a)

elements, the court stated:

              The Court deems that the low end of the advisory guideline range, 262
       months, to be excessive, as does the Probation Office under all the
       circumstances, including the amount of drugs involved in the previous
       convictions, the fact that his designation as a career offender while accurate
       under the guidelines somewhat exaggerates his criminal history to some extent
       since the offenses, qualifying offenses, occurred in a relatively short period
       and he was sentenced in one proceeding over 11 years ago.

       In addition, the court reasoned that Bonner’s age had a bearing on the unlikelihood

of his presenting a danger to the community after serving a sentence of 180 months. The

District Court, however, did not explicitly rule on Bonner’s request for downward departure

at this time. Bonner timely filed an appeal to this Court.1


       1
        We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The District Court had
jurisdiction pursuant to 18 U.S.C. § 3231.

                                              3
II. Analysis

       Our precedents, following United States v. Booker, 543 U.S. 220 (2005), instruct

district courts to follow a three-step sentencing process in determining an appropriate

sentence to impose. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). First, a

district court must calculate a defendant’s guidelines sentence precisely as it would have

before Booker. Second, a district court must formally rule on the motions of the parties and

state on the record whether it is granting a departure and how that departure affects the

guidelines calculation, taking into account our pre-Booker case law which continues to have

an advisory force. Third, a district court is required to exercise its discretion by considering

all relevant § 3553(a) factors in setting a sentence.

       Bonner contends that the District Court, by not formally ruling on his motion for

departure, did not properly follow step two of this sentencing process. Further, Bonner

alleges that this failure to expressly state whether the court granted departure and its effect

on the advisory sentence calculation makes it impossible to determine the consistency and

reasonableness of Bonner’s sentence. Both Bonner and the government express the belief

that the record reveals that the District Court did grant Bonner’s motion for downward

departure, even though the court did not formally rule on Bonner’s motion or state how this

departure affected Bonner’s sentence.

       We agree that the granting of the motion for downward departure is implied by the

sentence imposed which falls considerably below the guidelines’ range. In its preliminary

consideration of the objections to the Presentence Report and at the sentencing hearing, the

                                               4
District Court expressed its concern that the criminal history was overstated. Although we

urge the district courts to fully explain their consideration of and rulings on motions to

depart, we will consider the failure to rule on the motion to be a de facto granting of the

motion in view of the views expressed by the District Court and the imposition of a sentence

which falls considerably below the guideline range. Accord United States v. Colon, 474 F.3d

95, 99 n.8 (3d Cir. 2007) (considering a failure of District Court to make a departure from

the guidelines at step 2 to be a de facto denial of the motion for departure).

       Moreover, the record shows that the District Court considered the § 3553(a) factors

including the nature and circumstances of the offense, the defendant’s history and

characteristics, the kinds of sentences available for the offense, the sentencing guidelines

range adopted by the United States Sentencing Commission, and any applicable policy

statements to avoid unwarranted sentence disparities. Therefore, applying a deferential

standard of review, we conclude that the District Court reasonably considered the motion to

depart and applied the required factors in sentencing Bonner to 180 months in prison. See

United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006).



IV. Conclusion

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

sentence.




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