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


3-27-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5114




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                                                                   NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT

                                     ___________________

                                          No. 06-5114

                               UNITED STATES OF AMERICA

                                               v.

                                 THEODORE W. WYCHE, JR.
                                                       Appellant
                                    __________________


                          Appeal from the United States District Court
                             for the Middle District of Pennsylvania
                           (D.C. Criminal Action No. 06-cr-00126-1)
                                 District Judge Sylvia H. Rambo

                                     __________________

                          Submitted under Third Circuit LAR 34.1 (a)
                                      February 7, 2008

                         Before: MCKEE and AMBRO, Circuit Judges
                                and TUCKER, District Judge1*

                                (Opinion filed: March 27, 2008)
                                    __________________

                                          OPINION
                                     __________________




TUCKER, District Judge


       * Honorable Petrese B. Tucker, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
       Theodore W. Wyche, Jr. appeals the guideline sentence of 87 months’ incarceration

imposed by United States District Judge Sylvia H. Rambo (“the District Court”). The issue

before this Court is the District Court’s interpretation and application of United States v. Gunter,

462 F.3d 237 (3d Cir. 2006), relating to the 100:1 crack/powder cocaine ratio. For the reasons

set forth below, we affirm.

                                              I.

       The pertinent facts are as follows. Over a two-week period, between January and

February 2006, Wyche negotiated and sold 95 grams of crack cocaine to federal investigators in a

total of four controlled transactions. On April 5, 2006, Wyche, his older sister, and her boyfriend

were charged with conspiracy to distribute more than 50 grams of crack cocaine in violation of

21 U.S.C. §§ 841, 846.

       The Presentence Report (“PSR”) determined that Wyche’s base offense level was 32.

The report added a two-point enhancement for Wyche’s leadership role, pursuant to U.S.S.G. §

3B1.1 (c), and three points were subtracted for acceptance of responsibility, pursuant to U.S.S.G.

§ 3E1.1(a) and (b). The total offense level was set at 31 with a Criminal History Category of I;

thus setting the Sentencing Guidelines range at 108 to 135 months.

       Both Wyche and the government filed objections to the PSR. The parties reached an

agreement whereby the government would not present evidence in support of the leadership

enhancement (a two-level enhancement) and Wyche would not seek a safety valve downward

departure (a two-level reduction) pursuant U.S.S.G. § 5C1.2(a)(5). The District Court

consequently omitted the two-point leadership enhancement. The adjusted level was 29, and

with a Criminal History Category of I the Guideline range was 87-108 months.

       During the sentencing hearing, in addition to revealing the parties’ agreement, Wyche
argued that a sentence outside the Guidelines range would be appropriate in light of Gunter,

which addressed the 100:1 crack to powder ratio. 462 F. 3d 237. The District Court sentenced

Wyche to 87 months’ incarceration, explaining that its sentence was at the low end of the

Guideline range for the following reasons:

       1) Within the a two-week period, investigators bought approximately 95 grams of crack
       cocaine from Wyche during four controlled buys;

       2) Wyche has a criminal history not reflected in his criminal history category, including a
       criminal adjudication for delivery of cocaine and possession with intent to deliver cocaine
       and five driving under suspension convictions;

       3) Failure to consider that Wyche’s criminal history would effectively treat him the same
       as a similarly situated defendant with no prior contact with the law;

       4) Wyche’s prior criminal history raises the likelihood of recidivism;

       5) Wyche had a somewhat difficult childhood;

       6) Wyche benefitted greatly by the plea agreement; and

       7) The Court considered “the ratio between crack and powder cocaine as a basis for
       sentencing at the low end of the guideline range.”


       On appeal, Wyche argues that his sentence should be vacated and remanded for

resentencing. In sum, Wyche argues that his sentence does not meet the reasonableness

standards required by United States v. Booker, 543 U.S. 220, 226-62 (2005). While Wyche

concedes that the sentence is at the low end of the applicable guideline range, he contends that

where the sentence incorporates the crack cocaine Guideline, it is unreasonable. According to

Wyche, the Court’s decision in Gunter and reports prepared by the United States Sentencing

Commission explain that the 100:1 crack/powder cocaine ratio fails to meet sentencing

objectives of 18 U.S.C § 3553(a). Wyche contends the record does not clearly indicate that the

District Court understood and reasonably discharged its obligation to consider all relevant section
3553(a) factors in imposing its sentence.

       Applying a deferential standard, this Court will review the sentence by the District Court

for reasonableness pursuant to 28 U.S.C. § 3742(a)(1). United States v. Cooper, 437 F.3d 324,

327 (3d Cir. 2006).

       The District Court properly applied the three-step process set forth by this Court in

Gunter and properly exercised its sentencing discretion. 462 F. 3d 237. In Gunter, this Court

explained two types of Booker errors: 1) reliance upon judge-found facts, other than prior

convictions to enhance the defendant’s sentence beyond the statutory minimum, commonly

referred to as “constitutional error”; and 2) application of the Guidelines mandatorily, commonly

referred to as “non-constitutional error.” Gunter, 462 F. 3d at 247. In the interests of avoiding

these errors, this Court instructed district courts to follow a three-step sentencing process:

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

       (2) In doing so, district courts must “formally rul[e] on the motions of both parties
       and stat[e] on the record whether they are granting a departure and how that
       departure affects the Guidelines calculation, and tak[e] into account [our]
       Circuit’s pre-Booker case law which continues to have advisory force.”

       (3) Finally, district courts are required to “exercise[] [their] discretion by
       considering the relevant [§ 3553(a)] factors” in setting a sentence regardless
       whether it varies from the sentence calculated under the Guidelines.

       Id. at 247 (citations omitted).

       “Post-Booker, a sentencing court errs when it believes that it has no discretion to consider

the crack/powder cocaine differential incorporated in the Guidelines—but not demanded by 21

U.S.C. § 841(b)—as simply advisory at step three of the post-Booker sentencing process

(imposing the actual sentence after considering the relevant § 3553(a) factors). . . . .” Id. at 249.

Here, no such error occurred.
       The District Court specifically stated its consideration of the disparity between crack and

powder as a basis for sentencing on the low end of the Guidelines. However, it is under “no

obligation to impose a sentence below the Guidelines solely on the basis of the crack/powder

cocaine differential.” Id. Further, contrary to Wyche’s suggestion, the District Court is not

required to “categorically reject” the 100:1 ratio.

       The record reflects that the District Court considered all relevant § 3553(a) factors.

Accordingly, we affirm.




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