                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 11-4308
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                             TRACY J. WASHINGTON,
                                       Appellant
                                ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                   (D.C. Crim. Action No. 1:09-cr-00172-01)
                       Honorable Christopher C. Conner
                               ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                           Submitted: September 20, 2012
                                  ______________

       Before: AMBRO, GREENAWAY, JR., and O’MALLEY *, Circuit Judges.

                         (Opinion Filed: November 28, 2012 )
                                  ______________

                                      OPINION
                                   ______________

GREENAWAY, JR., Circuit Judge.

      Appellant Tracy J. Washington (“Washington”) appeals the District Court’s

November 29, 2011 Judgment and sentence of 188 months’ imprisonment. Washington
*
 Hon. Kathleen M. O’Malley, Circuit Judge, United States Court of Appeals for the
Federal Circuit, sitting by designation.
pled guilty to possession with intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1), and to possession of a firearm by a previously

convicted felon, in violation of 18 U.S.C. § 922(g). Washington was sentenced to 240

months’ imprisonment. After sentencing, Washington appealed, seeking, among other

things, the application of the Fair Sentencing Act of 2010 to reduce his sentence. We

remanded, and at re-sentencing, Washington was sentenced to 188 months’

imprisonment. Washington now contends that his sentence is substantively unreasonable.

For the following reasons, we affirm the District Court’s Judgment and sentence.

                                 I.     BACKGROUND

       Because we write primarily for the benefit of the parties, we recount only the

essential facts. In May 2009, Washington was charged with possession of five grams or

more of cocaine base with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1),

and with possession of a firearm by a previously convicted felon, in violation of 18

U.S.C. § 922(g). On June 4, 2010, pursuant to a written plea agreement, Washington

pled guilty to both counts.

       In its Presentence Report, the Probation Department calculated Washington’s

Sentencing Guidelines offense level at 34, after applying a reduction for acceptance of

responsibility and after applying an enhancement because of the career offender

provision in § 4B1.1 of the Guidelines. 1 The PSR’s offense level calculation also

included a four-level enhancement for possession of a firearm by a previously convicted

1
 This provision applies to a defendant convicted of three or more felony offenses that are
appropriately characterized as crimes of violence or controlled substance offenses.

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felon, pursuant to U.S.S.G. § 2K2.1(b)(6).

       At the first sentencing hearing on December 29, 2010, Washington objected to the

four-level enhancement. The District Court initially overruled the objection but later

sustained it after hearing further argument; however, the total offense level did not

change because of the application of the career offender provision of the Guidelines. The

District Court imposed a sentence of 240 months’ imprisonment, followed by eight years

of supervised release. Washington filed a timely appeal.

       During the pendency of his first appeal, the United States Attorney General issued

a change in the Department of Justice’s policy regarding the retroactive application of the

Fair Sentencing Act of 2010. Washington had raised the issue of the application of the

Fair Sentencing Act at his sentencing, and as a result, the Government requested that this

Court remand the case for re-sentencing under the new policy. This Court granted the

request and remanded the case for re-sentencing.

       The District Court conducted the re-sentencing on November 21, 2011. The

second Presentence Report calculated Washington’s offense level at 31 with a Guidelines

range of 188 to 235 months’ imprisonment. At re-sentencing, the District Court both

incorporated its findings from the initial sentencing hearing and made new findings about

Washington’s family history, health, substance abuse problems, participation in

rehabilitation programs, and the circumstances surrounding the arrest for the underlying

offense and previous convictions. The District Court then reduced Washington’s prison

term from 240 to 188 months’ imprisonment and his term of supervised release from

eight to six years. Washington timely appealed.

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                     II.     JURISDICTION AND STANDARD OF REVIEW

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

appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       We review the District Court’s sentencing decision under an abuse of discretion

standard. Rita v. United States, 551 U.S. 338, 364 (2007) (citing United States v.

Booker, 543 U.S. 220, 261-62 (2005)); United States v. Tomko, 562 F.3d 558, 567 (3d

Cir. 2009) (en banc).

                                     III.   ANALYSIS

       Washington’s arguments appear to be two-fold. First, Washington argues that the

directive under U.S.S.G. § 4B1.1, that a career offender’s sentence should be at or near

the maximum term authorized, violates United States v. Booker because it makes the

Guidelines mandatory and inhibits the sentencing court’s ability to treat the Guidelines as

advisory. Second, Washington argues that his sentence of 188 months is substantively

unreasonable and that the District Court abused its discretion by (1) unreasonably

designating him a career offender, (2) failing to grant a downward variance based on

Washington’s contention that the career offender designation overrepresented his

criminal history and based on Washington’s age and participation in multiple post-

sentence rehabilitation programs, and (3) incongruently failing to apply the downward

variance at re-sentencing that it applied at the initial sentencing hearing.

       A. Career Offender Provision

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

(2005), the Sentencing Guidelines are no longer mandatory. Instead, they are advisory.

                                              4
We have not directly addressed whether Booker also made the career offender provision

of the Guidelines advisory. 2 We have consistently held, however, that in compliance

with Booker, a district court’s first step in determining a defendant’s sentence must be to

“calculate the correct guidelines range applicable to a defendant’s particular

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

other grounds by Kimbrough v. United States, 552 U.S. 85 (2007). We continue to agree

and note that a sentencing court must calculate the correct sentence under the Guidelines,

including, if applicable, the career offender provision under U.S.S.G. § 4B1.1. Here, the

District Court correctly applied the career offender provision. Booker was not violated.

       B. Substantive Unreasonableness

       Washington’s second argument is that his sentence is substantively unreasonable.

When reviewing a sentence for substantive reasonableness, the district court’s decision is

“accord[ed] great deference.” United States v. Lessner, 498 F.3d 185, 204 (3d Cir.

2007). In evaluating substantive reasonableness, the appellate court should take into

account the totality of the circumstances. United States v. Lychock, 578 F.3d 214, 218

(3d Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). “[T]he touchstone

of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier,

475 F.3d 556, 571 (3d Cir. 2007) (en banc).



2
  However, we have addressed this issue previously in a not precedential opinion.
Nabried v. United States, 199 F. App’x 102 (3d Cir. 2006) (rejecting the argument that
the career offender provision violates Booker).

                                              5
       Specifically, Washington argues that his sentence is substantively unreasonable

and that the District Court abused its discretion by (1) unreasonably designating him a

career offender, (2) failing to grant a downward variance based on Washington’s

contention that the career offender designation overrepresented his criminal history and

based on Washington’s age and participation in multiple post-sentence rehabilitation

programs, and (3) incongruently failing to apply a downward variance at re-sentencing as

it had at Washington’s initial sentencing. None of these arguments has merit.

       As an initial matter, Washington’s argument that the career offender designation is

inappropriately applied has no legal foothold. The Guidelines state that a defendant is a

career offender if the defendant was at least eighteen years old at the time of the

underlying offense, the underlying offense is a felony, and the defendant has at least two

prior felony convictions. U.S.S.G. § 4B1.1(a). It is undisputed that Washington satisfies

all three requirements, and as such, the District Court properly applied this designation.

       Additionally, there is no evidence that the District Court abused its discretion in

failing to grant a downward variance at re-sentencing. In explaining a sentence, a district

court is obligated to “set forth enough to satisfy the appellate court that [it had] a

reasoned basis for exercising [its] own legal decision making authority.” Rita v. United

States, 551 U.S. 338, 351 (2007). The record demonstrates that, at both the initial

sentencing and re-sentencing, the District Court engaged in meaningful consideration of

the § 3553(a) factors, including hearing arguments on and addressing the details of

Washington’s past crimes, as well as his age and participation in post-sentencing

rehabilitation programs. See United States v. Merced, 603 F.3d 203, 218-20 (3d Cir.

                                               6
2010) (requiring a sentencing court to give a reasoned, coherent, and sufficiently

compelling explanation when granting a downward variance on the basis of a policy

disagreement with the career offender Guideline). In fact, the sentence confirms that the

District Court did consider Washington’s criminal history, age and participation in

rehabilitation programs, among other factors, because his sentence is at the absolute

bottom of the applicable advisory guideline range. Moreover, the fact that the District

Court sustained Washington’s objection to the four-level firearm possession enhancement

demonstrates that it considered Washington’s arguments.

       Furthermore, the District Court’s decision to vary downwardly from the first

calculated Guideline range, and not to vary downwardly from the second calculated

Guideline range, is well within the District Court’s broad discretion. Additionally, this

Court has emphasized that sentences falling within the advisory Guidelines range are

more likely to be reasonable than those falling outside of that range. See United States v.

Olfano, 503 F.3d 240, 245 (3d Cir. 2007). The final sentence of 188-months’

imprisonment is at the low end of the Guidelines range.

       The sentence imposed here is not substantively unreasonable, and the District

Court did not abuse its discretion in rendering this sentence.

                                  IV.    CONCLUSION

       For the reasons set forth above, we shall affirm the Judgment and sentence of the

District Court.




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