                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 09-4174


                            UNITED STATES OF AMERICA

                                            v.

                         LAWRENCE EVERETT CLARK, JR.,
                                            Appellant


                       Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Criminal No. 1-08-cr-00110-001)
                       District Judge: Honorable Sylvia H. Rambo


                      Submitted Under Third Circuit LAR 34.1(a)
                                   September 16, 2010

               Before: SCIRICA, RENDELL and FISHER, Circuit Judges.

                               (Filed: September 17, 2010)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Lawrence Everett Clark, Jr. appeals his sentence for possessing with intent to

distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).

Clark urges that his sentence of 151 months’ incarceration is substantively unreasonable
because the sentencing guideline range that the District Court applied significantly

overstated the seriousness of his criminal history. We disagree and will affirm Clark’s

sentence.

       Because we write for the parties who are familiar with the factual context and

procedural history of this case, we recite only the facts that are relevant to our analysis.

When Clark was initially sentenced in January 2009, the District Court sentenced him as a

career offender based on a 1990 felony assault conviction, a 1998 conviction for

possessing marijuana with intent to deliver, and a 1999 conviction for possession of

cocaine. Clark’s resulting sentencing guideline range was 188-235 months. Clark argued

at sentencing that this guideline range overstated the seriousness of his criminal history

and sought a downward departure pursuant to USSG § 4A1.39b)(3). Specifically, Clark

pointed out that his assault conviction was eighteen years prior to the instant offense and

that his two prior drug convictions involved very small amounts of drugs ($10 of

marijuana and $20 of cocaine base). The District Court granted Clark’s request and

reduced his criminal history category from VI to V, which resulted in a guideline range of

168 to 210 months. Clark further urged the Court to vary downward from the reduced

range, but was sentenced to 168 months.

       Clark then appealed that sentence, arguing that it was substantively and

procedurally unreasonable. We remanded for resentencing in light of the government’s

uncontested motion for summary remand in which the government recognized that the



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District Court may have misunderstood its authority to alter Clark’s career offender

status. On remand, the District Court applied the same downward departure as in the first

sentencing and additionally varied downwardly one offense level based on the

crack/cocaine disparity, resulting in a guideline range of 151 to 181 months. The Court

sentenced Clark to 151 months’ incarceration. On appeal, Clark acknowledges that the

District Court granted his requested downward departure, but argues that the one-level

downward variance is insufficient to make his sentence substantively reasonable. He

urges, as he did before the District Court, that even the reduced guideline range

significantly overstates the seriousness of his criminal history.

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

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review the District

Court’s sentencing for reasonableness based on the totality of the circumstances, under an

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).1 We defer to

the District Court’s determination of an appropriate sentence because that Court is best

suited to consider the specific circumstances of the case. United States v. Ausburn, 502

F.3d 313, 329 (3d Cir. 2007). We find that the District Court did not abuse its discretion

in sentencing Clark to 151 months’ incarceration after considering Clark’s criminal

history and granting both a downward departure and a downward variance.




       1
         Clark does not contend that the District Court failed to consider the appropriate
factors under 18 U.S.C. § 3553(a).

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       For the foregoing reasons we will AFFIRM the Judgment and Commitment Order

of the District Court.




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