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


6-9-2008

USA v. Gunter
Precedential or Non-Precedential: Precedential

Docket No. 07-1291




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                                       PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 07-1291


        UNITED STATES OF AMERICA,

                          v.

               JOHNNY GUNTER,

                           Appellant


  On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
       (D.C. Criminal No. 04-cr-00295-01)
     District Judge: Honorable James T. Giles


  Submitted Pursuant to Third Circuit LAR 34.1(a)
                   June 6, 2008

Before: FISHER, JORDAN, and VAN ANTWERPEN,
                  Circuit Judges.

               (Filed: June 9, 2008)
David L. McColgin, Esq.
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

       Counsel for Appellant

Francis C. Barbieri, Jr., Esq.
Robert A. Zauzmer, Esq.
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106

       Counsel for Appellee


                 OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

        Appellant Johnny Gunter appeals the judgment of
sentence entered by the District Court following resentencing.
Appellant contends that the District Court erred in: (1) failing
to understand its discretion to consider Appellant’s arguments
relating to disparities created by the crack-to-powder ratio;
and (2) imposing a concurrent sentence on Count 5 in excess
of the statutory maximum. Although we will affirm the
overall length of the sentence because the District Court
properly followed this Circuit’s and the Supreme Court’s case
law, we will vacate the concurrent sentence imposed on Count
5 and remand with orders for the District Court to reduce the


                               2
sentence on Count 5 to 120 months.

                                I.

       The underlying facts of this criminal case were
discussed in some detail in United States v. Gunter, 462 F.3d
237, 238-39 (3d Cir. 2006), and therefore do not need to be
discussed again at length. We write precedentially to discuss
the impact on this case of recent Supreme Court cases.

       Detectives found Gunter in a motel with 72.5 grams of
crack and a loaded 0.25 caliber firearm. Gunter was indicted
for conspiracy to distribute in excess of 50 grams of crack (in
violation of 21 U.S.C. § 846), possession with intent to
distribute in excess of 50 grams of crack (in violation of 21
U.S.C. § 841(a)(1)), possession of crack with the intent to
distribute within 1,000 feet of a school (in violation of 21
U.S.C. § 860(a)), carrying a firearm during and in relation to a
drug trafficking crime (in violation of 18 U.S.C. § 924(c)),
and possession of a firearm by a convicted felon (in violation
of 18 U.S.C. § 922(g)(1)). He was convicted on all charges
by a jury.

        Gunter asked the District Court to sentence him below
his Guidelines range on several grounds, including the
“disparity” created by the longer sentences recommended for
offenses involving crack cocaine. The District Court refused
to do so, stating that it could not “second guess Congress’ . . .
intent.” We reversed and remanded for resentencing.

       Upon remand pursuant to our precedential opinion in
Gunter, the District Court held a second sentencing hearing
on January 24, 2007. The District Court adopted the
Guidelines range from the first sentencing hearing, which
included a range of 235 to 293 months’ imprisonment for the


                                3
drug offenses plus a consecutive 60 months’ imprisonment for
the 18 U.S.C. § 924(c) offense. This led to a total Guidelines
range of 295 to 353 months’ imprisonment. The District
Court imposed a below-Guidelines sentence of a total of 283
months’ imprisonment.1 Appellant appeals from that
sentence.

                              II.

        The District Court had subject matter jurisdiction over
this criminal prosecution pursuant to 18 U.S.C. § 3231. This
Court has appellate jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). The Notice of Appeal was timely filed
on January 26, 2007.

       This Court reviews sentences for reasonableness.
United States v. Booker, 543 U.S. 220, 261 (2005); United
States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006). “The
record must demonstrate the trial court gave meaningful
consideration to the § 3553(a) factors. . . . The court need not
discuss every argument made by a litigant . . . .” Id. at 329.
Where the appellant/defendant contends that the district court
made a mistake of law, our review is plenary. United States v.
Lloyd, 469 F.3d 319, 321 (3d Cir. 2006).

        In Gall v. United States, 128 S. Ct. 586, 597-98 (2007),
the United States Supreme Court held that sentencing
decisions by the district courts are to be reviewed under a
deferential abuse of discretion standard. “We may not reverse
the district court simply because we would have imposed a
different sentence.” United States v. Wise, 515 F.3d 207, 218


       1
        The term of imprisonment of 283 months was due to
concurrent sentences of 223 months on Counts 1, 2, 3, and 5,
and a consecutive sentence of 60 months on Count 4.

                               4
(3d Cir. 2008) (citing Gall, 128 S. Ct. at 597). A sentencing
court should “consider every convicted person as an
individual and every case as a unique study in human failings
that sometimes mitigate, sometimes magnify, the crime and
punishment to ensue.” Gall, 128 S. Ct. at 598 (quoting Koon
v. United States, 518 U.S. 81, 113 (1996)). We noted in
United States v. Jackson, — F.3d — (3d Cir. 2008), that
“Cooper continues to be the law in this Circuit, but we will
read it in light of Gall.” In similar fashion, the Supreme
Court stated in Rita v. United States, 127 S. Ct. 2456, 2469
(2007): “Where a matter is . . . conceptually simple . . . and
the record makes clear that the sentencing judge considered
the evidence and arguments, we do not believe the law
requires the judge to write more extensively.” District courts
have broad discretion in sentencing. See, e.g., United States
v. Regalado, 518 F.3d 143, 146 (2d Cir. 2008); United States
v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Nevertheless, “[a]
district court by definition abuses its discretion when it makes
an error of law.” Wise, 515 F.3d at 217 (quoting Koon, 518
U.S. at 100).

                               III.

       In United States v. Gunter, this Court ruled that district
courts must use the following three-step process for
sentencing:

          (1) Courts must continue to calculate a
          defendant’s Guidelines sentence
          precisely as they would have before
          Booker.

          (2) In doing so, they must formally rule
          on the motions of both parties and state
          on the record whether they are granting a


                                5
          departure and how that departure affects
          the Guidelines calculation, and take into
          account our Circuit’s pre-Booker case
          law, which continues to have advisory
          force.

          (3) Finally, they are required to exercise
          their discretion by considering the
          relevant [18 U.S.C.] § 3553(a) factors in
          setting the sentence they impose
          regardless whether it varies from the
          sentence calculated under the Guidelines.

Gunter, 462 F.3d at 247 (internal quotation marks, citations,
and alterations omitted). “The Supreme Court’s opinion in
Gall reemphasizes the post-Booker sentencing structure set
forth in this Court’s precedent.” Wise, 515 F.3d at 216.

       Appellant argues that although the District Court
recognized correctly that it could not establish a new crack-to-
powder ratio for purposes of calculating the Guidelines range
under Step 1, the District Court incorrectly concluded that it
could not disagree with the Guidelines at Step 3 solely on
policy grounds. Appellant singles out particular statements in
the sentencing colloquy to support his position. However, we
review the sentencing transcript as a whole and “will not
elevate form over substance.” United States v. Dragon, 471
F.3d 501, 506 (3d Cir. 2006). Nor are there certain magic
words that the court must invoke. Cooper, 437 F.3d at 332.
We have reviewed the entire sentencing transcript in this case,
and while it could be clearer, we believe the District Court
was cognizant of and acted consistent with the caselaw of this
Circuit and recent rulings of the Supreme Court pertaining to
the crack-to-powder ratio.



                               6
        Once Steps 1 and 2 of the sentencing process are
completed, Gunter allows district courts to consider the crack-
to-powder ratio along with the 3553(a) factors at Step 3 when
sentencing defendants, noting that “the District Court erred
under Booker in treating the crack/powder cocaine sentencing
differential . . . as mandatory.” Gunter, 462 F.3d at 248-49.
Nevertheless, Gunter prohibits categorical rejection of the
100:1 ratio. Id. at 249 (“[W]e do not suggest (or even hint)
that the Court categorically reject the 100:1 ratio and
substitute its own, as this is verboten.”) (italics in original).
On the surface, these two principles appear to conflict
somewhat.

        This Court used its decision in United States v. Ricks,
494 F.3d 394 (3d Cir. 2007), to clear up any confusion in the
Gunter holding. The Court began by noting that district
courts should first calculate the correct Guidelines range and
rule on any departure motions. Id. at 398. This obviously
means that a correct Guidelines calculation must be made
using the applicable Guidelines crack-to-powder ratio.
Failure to properly calculate the Guidelines is a procedural
error that requires remand unless the error is harmless. Gall,
128 S. Ct. at 597; United States v. Langford, 516 F.3d 205,
215 (3d Cir. 2008). Ricks further explained that at Step 3, the
district court cannot categorically disagree with the crack-to-
powder sentencing disparity; rather, the district court may
consider the disparity, but only in reference to individual,
case-specific factors under 18 U.S.C. § 3553(a). Ricks, 494
F.3d at 402-03. The Court stated: “In short, a district court
may, at step three, view the sentencing disparity as too vast.
However, it must do so as applied to the particular defendant
that appears before the court.” Id. at 403 (emphasis added).

     Ricks was followed by the Supreme Court’s decision in
Kimbrough v. United States, 128 S. Ct. 558 (2007). The


                               7
Supreme Court stated that district courts must treat the
Guidelines as the starting point. Id. at 574. As previously
noted, the Guidelines must be properly calculated. Gall, 128
S. Ct. at 597. The Court in Kimbrough then stated: “[I]t
would not be an abuse of discretion for a district court to
conclude when sentencing a particular defendant that the
crack/powder disparity yields a sentence ‘greater than
necessary’ to achieve § 3553(a)’s purposes, even in a mine-
run case.” Kimbrough, 128 S. Ct. at 575 (emphasis added).
The Court noted that “the [District Court] did not purport to
establish a ratio of its own. Rather, it appropriately framed its
final determination in line with § 3553(a)’s overarching
instruction . . . .” Id. This language is consistent with our
statements in Ricks and Gunter. Wise, 515 F.3d at 222.

       Simply put, a district court may not employ a “rubber
stamp” approach that categorically rejects the crack/powder
disparity without an individualized assessment of the §
3553(a) factors and the facts of a particular case. Such an
approach would be tantamount to the district court setting its
own crack/powder ratio, which Gunter and Ricks forbid.
Gunter, 462 F.3d at 249; Ricks, 494 F.3d at 402-03.
Nevertheless, even in an ordinary case, the district court may
determine that the crack/powder ratio yields a sentence that is
greater than necessary after giving proper consideration to the
§ 3553(a) factors and the circumstances of the particular case.
The district court would then be free to disagree with the
policy underlying the crack/powder ratio as applied to that
particular defendant and make an appropriate downward
variance in its sentence. The difference between what a court
may do and may not do goes beyond mere words. There must
be meaningful consideration of the § 3553(a) factors and the




                                8
particular circumstances 2 of the case before a variance is
made.

                               IV.

        At resentencing, the Appellant/Defendant asked the
District Court to consider the Sentencing Commission’s
findings and reports which were critical of the crack-to-
powder cocaine ratio. Counsel argued that cocaine powder
and crack cocaine are not different pharmacologically, are
both addictive, and Congress’s reasons for creating the ratio
are not “totally accurate.” Counsel briefly alluded to the fact
that there was no violence in this case, but most of his
arguments at sentencing concerned only general policy. The
District Court responded: “[Y]ou’re asking me indirectly to
second guess the Sentencing Commission or the Congress . . .
to come up with a ratio [that is] something else. . . . [A]s I
understand Gunther [sic], that’s verboten.” App. at 30. The
District Court was quoting from the Gunter decision, and its
statement is entirely correct under the holdings of Gunter,
Ricks, and Kimbrough. The District Court went on to note
that it understood the advisory nature of the Guidelines. See
App. at 57. The District Court also stated that it had
considered Appellant’s arguments about the 100:1 ratio and
that it did not have “the ability to substitute its own ratio for


       2
         Booker contemplates that the district court will impose
a discretionary sentence after consideration of the Presentence
Report, as well as the advisory Guidelines, the grounds properly
raised by counsel, the defendant’s allocution, any victim
statements, and other relevant evidence. United States v.
Vampire Nation, 451 F.3d 189, 197 (3d Cir. 2006). Although
the district court should consider these things, it does not
necessarily follow that the court must include all of them in its
discussion. Rita, 127 S. Ct. at 2469; Cooper, 437 F.3d at 329.

                                9
what the Sentencing Commission or Congress has decided is
appropriate.” App. at 58. The District Court carefully
considered all of the relevant § 3553(a) factors and made a
variance below the Guidelines range, noting in particular
Appellant’s “efforts at reducing the chances of recidivism and
increasing the chances for successful supervised release.”
App. at 58-59. The below-Guidelines variance further
illustrates the District Court’s understanding of the advisory
nature of the Guidelines.

        Appellant singles out the District Court’s statement
that “I don’t think that I’m permitted to dissect and disagree
with what I’ve already calculated to be an appropriate pre-
Booker calculation.” App. at 31. Review of the language of
the District Court preceding this statement makes it clear that
the District Court was referring only to its inability to
categorically disagree with the crack-to-powder ratio on
policy grounds by establishing its own general ratio. The
District Court stated “I am permitted to . . . consider the
overall calculation . . . and determine whether or not that
advisory range is a reasonable range under the circumstances
for this particular individual defendant, considering other
factors under 3553(a).” App. at 31 (emphasis added). As we
noted in Cooper, a district court’s statements at sentencing
“are addressed primarily to the case at hand and are unlikely
to be a perfect and complete statement of all the surrounding
law.” Cooper, 437 F.3d at 330 n.8 (citations omitted); see
also Dragon, 471 F.3d at 506 (stating “we will not elevate
form over substance”).

        Appellant’s arguments on appeal are for the most part
similar to those advanced at sentencing. He does not point to
case-specific facts that would warrant a downward variance
for this particular defendant consistent with the holdings of
Gunter, Ricks, and Kimbrough. Rather, Appellant singles out


                              10
particular portions of the sentencing colloquy and argues that
the District Court incorrectly concluded that it could not vary
from the crack cocaine Guidelines. Because the District
Court complied with the controlling case law of this Circuit
and the Supreme Court, this Court will affirm the overall
length of the District Court’s sentence.

       Finally, Appellant argues that the District Court’s
concurrent sentence of 223 months on Count 5, which
charged a violation of 18 U.S.C. § 922(g), exceeded the
statutory maximum. The statutory maximum for violations of
18 U.S.C. § 922(g) is 10 years. 18 U.S.C. § 924(a)(2). The
Government concedes that this constituted plain error, and we
agree. Therefore, the District Court should reduce the
concurrent sentence on Count 5 to no more than 120 months.
This change does not affect the overall sentence of 283
months’ imprisonment.3

                              V.

       For the foregoing reasons, this Court will vacate the
sentence on Count 5 and will remand to the District Court to
reduce the sentence on Count 5 to no more than 120 months.
However, this Court will affirm Appellant’s conviction and
sentence in all other respects.




       3
         We note that nothing in this opinion prejudices
whatever rights Appellant may have to seek resentencing under
18 U.S.C. § 3582(c)(2) in light of Amendment 706 to the
Sentencing Guidelines, which has the effect of decreasing the
base offense level by two levels for crack cocaine offenses.
U.S.S.G. Supp. to App’x C, Amend. 706. See Wise, 515 F.3d at
219-21.

                              11
