                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4386




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                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 07-4386
                      ____________

            UNITED STATES OF AMERICA

                              v.

               MICHAEL STALLWORTH,
                  also known as SKI


                      Michael Stallworth,

                            Appellant
                      ____________

      On Appeal from the United States District Court
                for the District of New Jersey
                   (D.C. No. 07-cr-00368)
      District Judge: Honorable Garrett E. Brown, Jr.
                        ____________

        Submitted Under Third Circuit LAR 34.1(a)
                    January 9, 2009

Before: FUENTES, FISHER and ALDISERT, Circuit Judges.

                (Filed: February 12, 2009)
                      ____________

               OPINION OF THE COURT
                    ____________
FISHER, Circuit Judge.

       Michael Stallworth was convicted of possession with intent to distribute crack

cocaine in violation of 21 U.S.C. § 841(a)(1) following a jury trial, and the District Court

sentenced him to 195 months’ imprisonment. Stallworth appeals from the District

Court’s judgment of sentence. For the reasons that follow, we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On October 27, 2006, a confidential informant (“CI”) called Stallworth and

arranged for Stallworth to sell him twenty grams of crack cocaine for $600 at a particular

address in Lakewood, New Jersey. Twenty minutes later, Stallworth met the CI at the

agreed-upon location and sold twenty grams of cocaine to him in exchange for $600. The

CI wore a recording device throughout the transaction, as provided by law enforcement

officers. Laboratory test results showed that the substance Stallworth sold to the CI

contained approximately 17.8 grams of cocaine base. Law enforcement officers

subsequently arrested Stallworth. Trial commenced, and on August 2, 2007, a jury found

Stallworth guilty of possession with intent to distribute crack cocaine in violation of 21

U.S.C. § 841(a)(1).




                                              2
       Stallworth’s sentencing hearing was held on November 8, 2007, at which the

District Court calculated his total offense level as 26, but due to his career offender status

it increased to 34. As a career offender, Stallworth’s criminal history was category VI.

His undisputed Guidelines range, therefore, was 262 to 327 months’ imprisonment.

       Stallworth moved for a downward departure under Guidelines § 4A1.3, asking the

District Court not to sentence him as a career offender. Calling Stallworth’s criminal

history “extensive and somewhat unique,” the District Court acknowledged that it would

still consider a departure or variance in light of the 18 U.S.C. § 3553(a) factors,

Stallworth’s lengthy Guidelines sentence, and his background and young age of nineteen.

The District Court then declined to grant a departure, but granted a variance, finding

Stallworth’s Guidelines sentence “more than is necessary.” The District Court sentenced

Stallworth to 195 months’ imprisonment, which was within a Guidelines range of 188 to

235 months’ imprisonment, if a reduced criminal history category of V and a total offense

level of 32 had been used. It also imposed supervised release for a term of five years and

a fine of $3,000. Stallworth filed a timely notice of appeal.

                                              II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we exercise

jurisdiction over Stallworth’s appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291. We review the sentence imposed by the District Court for reasonableness. Gall

v. United States, 128 S. Ct. 586, 594 (2007). Specifically, “[w]e must first ensure that the



                                              3
district court committed no significant procedural error” in reaching its conclusion, and if

we determine that it has not, “we then review the substantive reasonableness of the

sentence under an abuse-of-discretion standard, regardless of whether it falls within the

Guidelines range.” United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008) (citing

Gall, 128 S. Ct. at 597).

                                             III.

       Stallworth argues on appeal that the District Court abused its discretion in

sentencing him as a career offender, overemphasized his criminal history in considering

the 18 U.S.C. § 3553(a) factors, imposed an excessive sentence given the § 3553(a)

retribution and deterrence considerations and the crack versus powder cocaine disparity,

and abused its discretion in declining to grant him a greater variance in light of the

§ 3553(a) sentencing goals and the sentences other criminal defendants charged with the

same crime as Stallworth have received. Although Stallworth does not categorize the

District Court’s judgment of sentence as procedurally erroneous or substantively

unreasonable, we will address his arguments in such a manner in light of the Gall

framework.

                                             A.

       We first examine Stallworth’s sentence to ensure the District Court did not commit

procedural error, “such as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,



                                              4
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence – including an explanation for any deviation from the Guidelines range.”

Gall, 128 S. Ct. at 597. Stallworth argues repeatedly that the District Court failed to fully

consider all of the § 3553(a) factors in crafting his sentence, and we construe this as a

procedural error argument. To the extent that Stallworth’s arguments challenge the

District Court’s consideration of the § 3553(a) factors, we find the record demonstrates

that the District Court gave “meaningful consideration” to the factors. United States v.

Cooper, 437 F.3d 324, 329 (3d Cir. 2006). We will nevertheless briefly discuss

Stallworth’s specific arguments.

       Stallworth argues first that the District Court abused its discretion in rejecting his

request not to sentence him as a career offender because it placed undue emphasis on his

criminal history, and therefore did not properly consider all of the § 3553(a) factors.

Stallworth asserts that because the District Court had the authority under Kimbrough v.

United States to grant a downward variance from the Guidelines “based solely on policy

considerations,” it abused its discretion in failing to invoke that authority in this case.

128 S. Ct. 558, 570 (2007).

       We find these arguments unpersuasive. The District Court, after considering the

details of Stallworth’s earlier offenses, found his initial Guidelines range prior to the

career offender adjustment “clearly inadequate under the circumstances” given his record

of violent offenses and potential for recidivism, and this determination finds support in



                                               5
the Guidelines. See U.S. Sentencing Guidelines Manual § 4A1.3 cmt. background

(describing conditions under which the career offender provision is particularly pertinent

and therefore when a district court may not wish to grant a downward departure); id.

§ 4B1.1. The District Court did not indicate that it disagreed with the career offender

provision as applied to Stallworth or that it lacked the authority to grant a downward

variance, and thus Kimbrough is not implicated. In fact, based on the District Court’s

meaningful consideration of the factors, it ultimately granted Stallworth a variance and

sentenced him significantly below his Guidelines range, albeit not as far below as

Stallworth would have preferred. Therefore, we conclude that the District Court did not

commit procedural error when it sentenced Stallworth in light of the career offender

provision and the related § 3553(a) factors.

       Stallworth also argues that the District Court gave undue weight to the sentencing

goals of retribution and deterrence, and did not tailor an individualized sentence for him.

However, the record indicates that the District Court recognized and rejected Stallworth’s

arguments relating to retribution and deterrence, stating that he “has proven to be

dangerous and incorrigible, and the public needs a substantial period of time of protection

from him.” Accordingly, we cannot agree that the District Court failed to adequately

consider the sentencing goals under § 3553(a).




                                               6
       Thus, we find no procedural error in the District Court’s sentencing decision, and

we will now consider the substantive reasonableness of Stallworth’s sentence. Gall, 128

S. Ct. at 597.

                                             B.

       In reviewing a sentence for substantive reasonableness, the Supreme Court

instructs us to consider the totality of the circumstances. Id. Stallworth argues that the

District Court’s failure to sentence him to a lower term of imprisonment resulted in an

excessive sentence given the crack/powder cocaine disparity we discussed in United

States v. Gunter, 462 F.3d 237 (3d Cir. 2006). We find this argument unpersuasive. The

District Court acknowledged on the record that Stallworth sought a downward departure

or variance on this basis and considered his arguments. However, his Guidelines range

was primarily driven by his criminal history and career offender status under Guidelines

§ 4B1.1, rather than the crack/powder cocaine ratio in the drug quantity tables of

Guidelines § 2D1.1. Additionally, the District Court did grant Stallworth a variance after

considering all of his sentence-mitigating arguments, just not as much of one as he had

hoped. See United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (“The decision by

the Court, however, not to give such mitigating factors the weight that [the defendant]

contends they deserve does not render [his] sentence unreasonable.”). Therefore, because

the crack/powder cocaine disparity did not drive Stallworth’s sentence and because we do

not agree that his sentence is overly harsh, we reject Stallworth’s argument.



                                              7
       Stallworth also argues that the District Court failed to avoid an unwarranted

sentencing disparity under 18 U.S.C. § 3553(a)(6) because Jerry Dorsey, another

defendant prosecuted in a different case, received a sentence of only 60 months’

imprisonment following his conviction for the same offense as Stallworth. See United

States v. Dorsey, No. 3:07-cr-00486-GEB (D.N.J. Feb. 21, 2008). We interpret this

argument as an attack on the substantive reasonableness of his sentence, but nonetheless

find it unconvincing. First, Stallworth was convicted after a jury trial, and did not receive

the three-point acceptance of responsibility deduction that Dorsey, who pled guilty, did

receive. Second, Stallworth had a more extensive criminal history than Dorsey, which

increased his Guidelines range dramatically through the career offender enhancement.

Third, we have held that Congress’ primary goal in including factor § 3553(a)(6), which

emphasizes “the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct,” was “to promote national

uniformity in sentencing rather than uniformity among co-defendants in the same case.”

United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006). Along these lines, we have

stated in numerous cases that “[r]easonableness is a range,” and therefore that one

defendant “can find another case where a defendant charged with a somewhat similar

crime and facing the same advisory sentencing range received a sentence outside of the

applicable sentencing range does not make [the original defendant’s] within-Guidelines

sentence unreasonable.” United States v. Jimenez, 513 F.3d 62, 91 (3d Cir. 2008).



                                              8
Stallworth’s argument is even weaker than arguments we have previously encountered

because his Guidelines sentence was different than Dorsey’s and because he received a

sentence below his Guidelines range.

       On these bases, Stallworth has not borne his burden of demonstrating the

unreasonableness of his sentence, and we cannot conclude that the District Court abused

its discretion in sentencing him.

                                           IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            9
