                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3312




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-3312


                           UNITED STATES OF AMERICA

                                           v.

                                 WILLIAM THORNE,
                                        a/k/a
                                      G LOVE

                                                 William Thorne, Appellant


                     Appeal from the United States District Court
                              for the District of New Jersey
                              (D.N.J. Crim. No. 06-cr-156)
                     District Judge: The Honorable Joel A. Pisano


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 30, 2007


       Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,* District Judge

                           (Opinion Filed: January 28, 2008)


                                       OPINION




   *
    The Honorable Paul S. Diamond, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
DIAMOND, District Court Judge

       William Thorne appeals the sentence imposed on him by the New Jersey District

Court following his eighth felony drug conviction. We affirm.

                                             I.

       On March 3, 2006, Thorne pleaded guilty to distribution and possession with intent

to distribute approximately twenty-six grams of crack cocaine. 21 U.S.C. § 841(a)(1).

Because this was Thorne’s eighth such conviction, the District Court designated him a

career offender under the Sentencing Guidelines, with a base offense level of 34.

U.S.S.G. § 4B1.1(b)(B). The Court then decreased that level by three points -- to 31 --

for acceptance of responsibility. U.S.S.G. § 3E1.1. Thorne’s criminal history category

was VI, and his advisory Guidelines sentence ranged between 188 to 235 months. On

June 28, 2006, the District Court sentenced Thorne to a term of 200 months

imprisonment. Thorne filed a timely notice of appeal from that sentence.

       Thorne contends that: 1) his classification as a career offender resulted in a

Guidelines calculation that was excessive; 2) the District Court erred in refusing to

consider the disparity between the Guidelines’ treatment of crack cocaine and powder

cocaine; 3) the District Court failed to give “meaningful consideration” to the factors set

out in 18 U.S.C. § 3553(a).

                                             II

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review



                                              2
Thorne’s sentence for reasonableness. United States v. Booker, 543 U.S. 220, 261

(2005); United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006).

                                             III

       The Guidelines require a defendant’s classification as a career offender if at the

time he committed the subject offense he was at least eighteen years old, the offense was

a felony involving either violence or a controlled substance, and the defendant had at least

two prior felony convictions involving violence or a controlled substance. U.S.S.G.

§ 4B1.1(a).

       It is undisputed that Thorne meets these criteria. He was forty at the time of his

guilty plea in this case -- his eighth felony drug conviction. The District Court thus

properly calculated Thorne’s sentence according to the career offender provision of the

Guidelines. Thorne contends that the “shortcomings of the career offender provision”

resulted in an inappropriate Guidelines calculation. (Appellant’s Br. 14.) Thorne does

not elaborate on what he believes those “shortcomings” may be, nor are they apparent to

us. Accordingly, we cannot say that Thorne’s Guidelines calculation was inappropriate.

                                             IV

       Also meritless is Thorne’s contention that the District Court improperly refused to

consider the Guidelines’ disparate treatment of crack cocaine and cocaine. First, the

contention is beside the point. Thorne’s Guidelines sentence was determined by his



                                              3
designation as a career offender, not by his possession of crack cocaine. In any event, the

record demonstrates that the District Court recognized its “discretion not to sentence in

accordance with the guidelines.” (A35.) See United States v. Gunter, 462 F.3d 237, 248-

49 (3d Cir. 2006) (district courts may consider disparity between the Guidelines treatment

of crack cocaine and cocaine as a factor in the sentencing process); see also Kimbrough v.

United States, No. 06-6330, __ S.Ct. __ 2007 WL 4292040, at *5 (U.S. December 10,

2007).


                                               V

         Finally, we conclude that the District Court properly considered the factors set out

in 18 U.S.C. § 3553(a). In Gunter, we set out the post-Booker procedures that district

courts must follow when imposing sentence. 462 F.3d at 247. Although Thorne’s

sentencing preceded by three months our decision in Gunter, the District Court

nonetheless followed appropriate procedures. The Court first calculated the advisory

Guidelines sentence. (A35.) The Court did not consider Guidelines departure motions

because none were filed. (A35.) Finally, the Court considered variances from the

Guidelines in accordance with the factors set out in § 3553(a).

         The Court first considered the nature and circumstances of Thorne’s crime and his

history and characteristics. See § 3553(a)(1). It described the offense as a “garden

variety distribution of 26 grams of crack cocaine by a defendant . . . who has

demonstrated a history through his entire life of being a drug dealer.” (A35-36.)

                                               4
Pursuant to § 3553(a)(2), the Court emphasized that this offense was Thorne’s eighth

felony drug conviction, and that “seven other sentences have done nothing to deter him

from further criminal conduct.” (A36-37.) The Court also recognized the need to

“protect the community from Thorne” and his continual drug dealing. (A37.) Given Mr.

Thorne’s age and circumstances, the Court determined that Thorne did not need any

special educational or vocational training. (A37-38.) Pursuant to § 3553(a)(3), the Court

then considered the kinds of sentences available, and ruled (correctly, in our view) that

the Guidelines’ career offender provision applied to Thorne. (A38.) Finally, the Court

discussed Thorne’s personal characteristics, such as his role as a father, and the support

he received from his fiancee and daughter. (A39.)

       Having applied these criteria to Thorne, the District Court imposed a sentence of

200 months incarceration. Thorne protests that the Court’s § 3553(a) analysis was

impermissibly “abbreviated.” (Appellant’s Br. 42.) We have held, however, that

sentencing courts need not engage in extended disquisitions respecting the § 3553(a)

factors to give them “meaningful consideration.” United States v. Vargas, 477 F. 3d 94,

101 (3d Cir. 2007). Rather, we require only that “ ‘the record makes clear the court took

the factors into account in sentencing.’ ” Id. (quoting Cooper, 437 F.3d at 329). The

record confirms that the District Court adequately considered the factors set out in

§ 3553(a). Accordingly, we reject Thorne’s contention that the Court failed to give the

factors “meaningful consideration.”


                                             5
                                     VI

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




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