United States v. Dwayne McLean , 331 F. App'x 151 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-22-2009
USA v. Dwayne McLean
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3064
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"USA v. Dwayne McLean" (2009). 2009 Decisions. Paper 1158.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 08-3064
UNITED STATES OF AMERICA
v.
DWAYNE McLEAN,
Appellant
On Appeal From the United States
District Court
For the District of New Jersey
(D.C. Crim. Action No. 2-07-cr-00973-001)
District Judge: Hon. William H. Walls
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 22, 2009
BEFORE: RENDELL, STAPLETON and ALARCON,*
Circuit Judges
(Opinion Filed: June 22, 2009)
*Hon. Arthur L. Alarcon, Senior United States Circuit Judge for the Ninth Circuit, sitting
by designation.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Dwayne McLean pled guilty to conspiring to distribute 100 grams or
more of heroin. He was sentenced to a term of 188 months, to be followed by four years
of supervised release. In this appeal, McLean contends that this sentence is procedurally
flawed and substantively unreasonable.
The presentence report revealed that McLean was 27 years old, that he had three
state felony drug convictions and a conviction for resisting arrest, and that he had
committed the instant offense while on parole. The report found him to be a career
offender under U.S.S.G. § 4B1.1 and concluded that his advisory Guidelines range was
188 to 235 months. If the career offender designation had been disregarded, the range
would have been 92 to 115 months.
In his sentencing brief and his oral argument at sentencing, McLean argued (1) that
his Guidelines range should be calculated without the career offender provision because
its reliance on state drug felonies was inconsistent with congressional intent; and (2) that
he was entitled to a variance under 18 U.S.C. § 3553 because the Guidelines range
calculated with the career offender provision provided for a sentence that was
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significantly “greater than necessary” to address McLean’s conduct and, accordingly,
unreasonable. At the sentencing hearing, the District Court invited argument on both the
initial “Guideline step” and the third “§ 3553 factor” step, listened to the responding
argument, expressly recognized its authority to grant a variance, and explained at some
length its conclusions (1) that Congress had intended to include state drug convictions
and had clearly so provided in the relevant statutory text, and (2) that a sentence at the
bottom of the Guidelines range (utilizing the career offender provision) would not be
greater than necessary to serve the objectives of § 3553, primarily because of the
seriousness of the offense and McLean’s criminal history. Based on our reading of the
sentencing hearing transcript, we are satisfied that counsel was given a fair opportunity to
address these arguments and that the District Court’s response met its responsibility to
explain its reasoning.
Before us, McLean insists that he made a third argument in his sentencing brief
which the District Court cut him off from addressing at the sentencing hearing and upon
which it improperly failed to comment. This argument is described in McLean’s reply
brief as a contention that he is entitled to a variance from the Guidelines range calculated
with the career offender enhancement because that “enhancement [is] historically
flawed.” Reply Br. at 5. This contention is advanced in McLean’s sentencing brief as
follows:
B. Research Indicates That The Career Offender
Provision, Especially As Applied To Offenders With Prior
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Drug Trafficking Convictions, Results In Sentences That Are
Greater Than Necessary To Serve The Purposes of
Sentencing.
The Sentencing Commission has identified the career offender
provision as a flawed means of achieving the purposes of sentencing,
especially when applied to offenders whose prior convictions involved drug
trafficking. In its fifteen-year review, it framed the question facing
policymakers as “whether the career offender guideline, especially as it
applies to repeat drug traffickers, clearly promotes an important purpose of
sentencing. See UNITED STATES SENTENCING COMMISSION, FIFTEEN YEARS
OF GUIDELINES SENTENCING, AN ASSESSMENT OF HOW WELL THE FEDERAL
CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING
REFORM, at 134 (November 2004) [hereinafter “Fifteen-Year Report”]. The
Commission cited testimony indicating that the career offender provision
may not serve the protective function very well when applied to offenders
with prior drug trafficking convictions, as opposed to offenders with prior
violent convictions, because drug traffickers are easily replaced. See id.
“Incapacitating a low-level drug seller prevents little, if any, drug selling;
the crime is simply committed by someone else.” Id. Despite its seriously
questionable utility, however, the career offender provision continues to
exact harsh punishment of those who come within its broad sweep.
McLean did not argue at the sentencing hearing that the Commission had deemed
the career offender provision a “flawed” means of achieving the purposes of sentencing.
App. at 31. It cannot fairly be said, however, that this was attributable to the District
Court’s precluding him from doing so. Whether the District Court addressed this
contention at the hearing depends on how it is understood. In his reply brief before us,
McLean explains that “the very point was that in his case, the career offender
enhancement did not lead to a sentence that was consistent with the goals of sentencing
retribution, deterrence, protection of the public and rehabilitation.” Reply Br. at 7-8
(emphasis in original). If this was the “point,” we fail to see how it differs from his
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second argument, and the District Court clearly considered and addressed it. To the
extent McLean’s sentencing brief is read to argue that the career offender enhancement
should be ignored in cases involving all non-violent, repeat drug offenders, it is true that
the District Court did not comment on it. Its failure to do so is understandable, however.
At the time, our Third Circuit case law clearly foreclosed the District Court from
considering such an argument. See United States v. Levinson, 543 F.3d 190, 201 n.8 (3d
Cir. 2008) (nothing in Kimbrough or in our own jurisprudence leaves a district court free
to state its own general sentencing policies in contravention of the Guidelines”); United
States v. Gunter, 527 F.3d 282, 286-87 (3d Cir. 2008) (reaffirming that district courts may
not categorically reject a Guideline provision for policy reasons that are unmoored to the
facts of the case before it and rejecting procedural reasonableness challenge where “most
of [defendant’s] arguments at sentencing concerned only general policy”); United States
v. Goff, 501 F.3d 250, 261 n.18 (3d Cir. 2007) (observing “that sincerely held policy
disagreements with the weight of sentences generally called for by the Guidelines in
certain categories of cases . . . are not a basis for bypassing the Guidelines”).
Since the time of McLean’s sentencing, however, the Supreme Court in Spears v.
United States, 129 S. Ct. 840 (Jan. 21, 2009), held “that district courts are entitled to
reject and vary categorically from the crack-cocaine Guidelines based on a policy
disagreement with those Guidelines.” The Court then vacated and remanded our decision
in Gunter to us for reconsideration in light of its Spears decision. Based on Spears, we
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believe a district court in determining the weight to be given the Guideline range at the
third variance step in its sentencing analysis is entitled to reject the policy judgments
reflected in the career offender Guideline.
Because the District Court in this case undoubtedly and understandably believed it
was without authority to consider McLean’s third argument, we will vacate and remand
for resentencing only. In so doing, we express no opinion regarding the merit of that
argument.
The judgment of the District Court will be vacated and the case will be remanded
to the District Court for resentencing.
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