                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 10-3472
                                    _______________

                           UNITED STATES OF AMERICA

                                            v.

                               GREGORY L. DOUGLAS,

                                              Appellant
                                    _______________

                     On Appeal from the United States District Court
                         For the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 1-09-cr-00364-001)
                     District Judge: Honorable William W. Caldwell
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 23, 2011
                                  _______________

         Before: BARRY, AMBRO, and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed June 24, 2011)
                                   _______________

                                       OPINION
                                    _______________


AMBRO, Circuit Judge

        In November 2009, Gregory Douglas was indicted for passing counterfeit United

States currency, in violation of 18 U.S.C. § 472. In April 2010, he pled guilty pursuant to
a plea agreement in which the Government agreed to consider moving for a downward

departure pursuant to § 5K1.1 of the United States Sentencing Guidelines in exchange for

Douglas’s cooperation. However, after Douglas made a statement about his involvement

in the counterfeiting operation, the Government determined that his cooperation was of

little value, and declined to move for a downward departure. At sentencing, Douglas

moved for a variance based on the same cooperation, which the Court denied. He was

sentenced to 33 months’ imprisonment followed by three years of supervised release.

Douglas appeals the denial of his motion. We now affirm.1

       Douglas argues that the District Court erred by failing to take into account his

cooperation during the sentencing hearing. We disagree. It is clear from the transcript of

the sentencing hearing that the District Court was aware of its discretion to grant a

variance. Douglas’s attorney pointed this out to the Court several times, noting that it

could consider Douglas’s assistance even though the Government declined to make a

motion for a downward departure. App. 127-129.2 The prosecutor similarly recognized



1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review a district court’s
sentencing decision for an abuse of discretion. United States v. Cooper, 437 F.3d 324,
328 (3d Cir. 2006), abrogated on other grounds by Kimbrough v. United States, 552 U.S.
85 (2007).
2
  Specifically, Douglas’s counsel stated that “the Court has the opportunity to make its
own independent determination of what [Douglas] did do and what help did it – what
help, if any, did it present to this particular case.” App. 128. Counsel continued, “I just
ask the Court reconsider that because it’s not dispositive that the Government made [the]
determination [not to move for a downward departure] now. Now that we’re in this
advisory guideline system, other courts have made it their own – have been able to make
their own determinations under a different set of judgments as to whether a defendant can
                                             2
the Court’s discretion. Id. at 129.3 Thus, although the Court ultimately declined to grant

a variance in favor of Douglas, it was aware of its discretion to do so.

       Moreover, the Court did not abuse its discretion in denying Douglas’s motion.

The Court rejected Douglas’s variance argument, stating that “I don’t think [Douglas’s

honesty was that much assistance to the Government, so we’re not going to be able to

make any adjustment for his assistance in this prosecution . . . .” App. 124. Additionally,

it stated that it was concerned about the total number of Douglas’s victims and his

recidivism. Ultimately, it imposed a sentence of 33 months, at the low end of the

Guidelines’ range (33 to 41 months), which it noted was consistent with the sentence

imposed on similarly situated defendants. This was not error.

                                       *   *   *   *   *

       For these reasons, we affirm.




get a variance for cooperation . . . when he doesn’t get a 5K1 motion specifically from the
Government, and I’d ask the Court to reconsider that issue.” Id. at 128-29.
3
  The prosecutor clarified as follows: “I didn’t mean to suggest that because a 5K motion
was not filed that the Court can’t consider [Douglas’s cooperation]. Certainly it can. The
Government, in terms of the Court’s 3553 analysis, would ask the Court to recognize that
it does have the discretion to vary for that reason and many others but to exercise the
discretion to not give a variance for that reason.” App. 129.
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