United States v. Donald Hunt ( 2011 )


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  •                                                    NOT PRECEDENTIAL
    
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________
    
                                      No. 10-2252
                                     _____________
    
                            UNITED STATES OF AMERICA
    
                                             v.
    
                                   DONALD J. HUNT,
                                           Appellant
                                    _____________
    
                    On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                          District Court No. 1-09-cr-00291-001
                  District Judge: The Honorable Christopher C. Conner
    
    
                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   January 27, 2011
    
                Before: McKEE, Chief Judge, and SMITH, Circuit Judges,
                           and STEARNS, District Judge*
    
                                 (Filed: February 1, 2011)
    
    
                                         OPINION
    
    
    STEARNS, District Judge.
    
    
    
          *
           The Honorable Richard G. Stearns, United States District Judge for the United
    States District Court of Massachusetts, sitting by designation.
          Donald Hunt appeals from his conviction and sentence for conspiracy to
    
    distribute crack cocaine and cocaine hydrochloride, in violation of 18 U.S.C. § 846
    
    and 18 U.S.C. § 841(a)(1). The District Court (Conner, J.) sentenced Hunt to a 235-
    
    month term of imprisonment. This timely appeal followed. Hunt claims that the
    
    District Court abused its discretion by denying his motion for a downward departure
    
    from his Criminal History Category VI and by imposing the sentence without giving
    
    sufficient consideration to the disparity between the advisory Guidelines sentencing
    
    ranges for crack and powder cocaine.
    
          On September 23, 2009, a Harrisburg grand jury returned a two-count
    
    Indictment charging Hunt and five co-defendants with unlawful distribution and
    
    possession with the intent to distribute cocaine hydrochloride and at least 50 grams
    
    of crack cocaine from September of 2008 through September 22, 2009 (Count I) and
    
    conspiracy to distribute cocaine hydrochloride and at least 50 grams of crack cocaine
    
    during the same time period (Count II). On December 10, 2009, pursuant to a
    
    written plea agreement, Hunt waived indictment to a one-count Superseding
    
    Information iterating the original conspiracy charge. The United States agreed to
    
    recommend a three-level reduction for acceptance of responsibility and to dismiss the
    
    original Indictment following sentencing. On December 22, 2009, Hunt pled guilty.
    
          The Pre-Sentence Report (PSR) prepared by the United States Probation Office
    
    (USPO) determined Hunt to be a career offender, automatically placing him in
    
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    Criminal History Category VI.1 The USPO further determined that the drug quantity
    
    involved amounted to at least two kilograms of crack cocaine and five kilograms of
    
    cocaine hydrochloride, yielding a base offense level of 36. The PSR recommended
    
    that Hunt be given a four-level upward adjustment for his leadership role in the
    
    conspiracy, and a three-level downward reduction for acceptance of responsibility,
    
    yielding a total offense level of 37. The resulting advisory Guidelines sentencing
    
    range was 360 months to life; however, the range was capped at 240 months because
    
    of the 20-year statutory maximum.
    
          Prior to sentencing, the parties resolved their differences over the PSR’s
    
    findings and recommendations. Specifically, the parties agreed that the drug amounts
    
    attributable to Hunt were one kilogram of crack cocaine and five kilograms of cocaine
    
    hydrochloride, thereby reducing his base offense level to 34. The parties also agreed
    
    to recommend a two-level rather than a four-level enhancement for Hunt’s role in the
    
    offense. With the three-level reduction for acceptance of responsibility, the total
    
    offense level was 33, with an advisory Guidelines range of 235-240 months.
    
    
          1
            Hunt’s criminal history included a 7 to14 year sentence to state prison for
    attempted homicide, aggravated assault, criminal conspiracy, and the reckless
    endangerment of others, among them a one-year-old child, who sustained two
    gunshot wounds when Hunt fired three bullets indiscriminately into the occupied
    vehicle, as well as a 94-month federal sentence for distribution and possession with
    intent to distribute crack cocaine. Hunt was on supervised release for the latter
    offense when he embarked on the year-long drug trafficking conspiracy that led to his
    present conviction.
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          At sentencing, Hunt asked the District Court to depart downwards from the
    
    Criminal History Category VI, arguing that the career criminal designation overstated
    
    the seriousness of his criminal record. Hunt also asked the Court for an 18 U.S.C. §
    
    3553(a) departure based on the disparity between the advisory Guidelines sentencing
    
    ranges for crack cocaine and powder cocaine.
    
          Judge Conner first determined that Hunt’s assignment to Criminal History
    
    Category VI was appropriate given the nature and extent of his criminal history and
    
    the likelihood of his committing future offenses.
    
          [Hunt’s] convictions include three prior drug convictions and a
          conviction for a violent crime. I think under the circumstances it is an
          appropriate designation for this defendant. So the motion for downward
          departure [on this ground] is denied.
    
    Sentencing Tr. at 26.2
    
          He then turned to the crack cocaine and powder cocaine sentencing disparity.
    
    Judge Conner explained:
    
          I also acknowledge that under the sentencing guidelines there is a
          disparity between the punishment advised for offenses involving crack
          cocaine and that advised for offenses involving cocaine hydrochloride.
          I recognize that I may depart or vary from the guideline sentence if I
          believe the disparity constitutes an unwarranted disparity within the
    
          2
            We acknowledge that the extreme youthfulness of an offender may be taken
    into account in determining whether his criminal history category is overstated. We
    do not agree, however, with the statement in Hunt’s brief that he should receive the
    benefit of this consideration because he “was just 27 years old” when he committed
    the offenses that led the District Court to determine that he satisfied the criteria of a
    career criminal. Appellant’s Br. at 11.
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          meaning of Section 3553(a). I decline to do so for several reasons in
          this case.
    
          First, . . ., it would only make a minor difference. He would still face a
          sentence at or near the sentence provided in this case. Second, and more
          importantly, I note that the disparity, while still extant, has been
          ameliorated by recent amendments to the sentencing guidelines, and
          finally, and perhaps most importantly, I do not disagree with the policies
          behind the current guidelines.
    
          Therefore I decline . . . to vary based upon an unwarranted disparity. In
          addition, there were a number of aggravating factors to consider in this
          case. . . . [T]he defendant poses at least some danger to the public from
          the nature of the instant offense and from . . . a number of drug
          trafficking offenses and a crime of violence. I have also considered the
          defendant’s likelihood to recidivate to criminal activity based on his
          prior record and based on his commission of the instant offense while on
          supervised release.
    
    Id. at 35-37. After making his findings, Judge Conner imposed a sentence of 235
    
    months.
    
          We undertake a procedural and substantive review of the sentence imposed by
    
    the District Court. See United States v. Lessner, 
    498 F.3d 185
    , 203 (3d Cir. 2007).
    
    Hunt alleges no procedural errors. We review the substantive reasonableness of a
    
    District Court’s denial of a downward sentencing departure for abuse of discretion.
    
    See United States v. Wood, 
    526 F.3d 82
    , 85 (3d Cir. 2008); Gall v. United States, 
    522 U.S. 38
    , 50-51 (2007). In considering a claim of substantive error, we ask whether
    
    the District Court exercised its discretion by considering the relevant § 3553(a)
    
    factors and whether it applied those factors reasonably in the instant case. See United
    
    
                                              5
    States v. Cooper, 
    437 F.3d 324
    , 329-330 (3d Cir. 2006), abrogated on other grounds
    
    recognized by United States v. Wells, 279 F. App’x. 100 (3d Cir. 2008). “The
    
    touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and
    
    meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United
    
    States v. Tomko, 
    562 F.3d 558
    , 568 (3d Cir. 2009) (quoting United States v. Grier,
    
    
    475 F.3d 556
    , 571 (3d Cir. 2007) (en banc)). A discussion of each of the statutory
    
    factors is not required if it is clear from the record that the District Court took the
    
    relevant factors into consideration in fashioning a sentence. Tomko, 562 F.3d at 568.
    
          We have reviewed the entire transcript of the sentencing hearing, and as the
    
    portions quoted earlier demonstrate, Judge Conner gave measured consideration to
    
    the relevant § 3553(a) factors. We agree with his ultimate determination that in
    
    Hunt’s case, “a sentence at the bottom end of the guideline range is reasonable,
    
    appropriate, and not greater than necessary to achieve sentencing objectives.”
    
    Sentencing Tr. at 37.
    
          For the reasons stated, we will affirm the judgment of the District Court.
    
    
    
    
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