United States v. Jazon Dussan , 378 F. App'x 166 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 09-2555 & 09-2556
UNITED STATES OF AMERICA
v.
JAZON DUSSAN,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action Nos. 2-08-cr-00061-001/2-08-cr-00753-001)
District Judge: Honorable Legrome D. Davis
Argued April 19, 2010
Before: SCIRICA, Chief Judge, AMBRO, and ALARCÓN * , Circuit Judges
(Opinion filed: April 30, 2010)
Robert Epstein (Argued)
Assistant Federal Defender
Defender Association of Philadelphia
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia PA 19106-0000
Counsel for Appellant
Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth Circuit
Court of Appeals, sitting by designation.
Karen L. Newton (Argued)
Assistant United States Attorney
Leo R. Tsao, Esquire
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION
AMBRO, Circuit Judge
Jazon Dussan appeals his within-Guidelines sentence for counterfeit currency
charges (in violation of 18 U.S.C. §§ 371 and 473), and a drug conspiracy charge (in
violation of 21 U.S.C. § 846).1 He argues that his sentence is procedurally unreasonable
because the District Court denied him downward adjustments for his acceptance of
responsibility and minor role in the drug conspiracy, and did not sufficiently consider his
sentencing arguments or adequately state the reasons for its sentence. For the reasons that
follow, we vacate and remand for resentencing.
I.
In May 2008, Dussan pled guilty to five counts of dealing in counterfeit United
States currency and one count of conspiracy to deal in counterfeit currency. While on bail
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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awaiting sentencing, Dussan was arrested and indicted on one count of conspiracy to
distribute and possess with intent to distribute one kilogram or more of heroin and 500
grams or more of cocaine. He pled guilty to this indictment as well. At Dussan’s request,
the counterfeiting and drug conspiracy cases were consolidated for sentencing.
At sentencing, the Court denied Dussan’s requests for an acceptance-of-
responsibility downward adjustment and a minor-role downward adjustment. Without
these adjustments, Dussan’s offense level was 30. With a criminal history category of I,
Dussan’s Guideline range was 97-121 months. After hearing testimony from Dussan’s
family members and friends, and from Dussan himself, the Court sentenced Dussan to 100
months’ imprisonment.
II.
We review the factual findings supporting a district court’s application of the
Sentencing Guidelines for clear error, and we exercise plenary review over its
interpretation of the Guidelines. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)
(en banc).
A. Minor Role Adjustment
Turning first to the minor role adjustment, the District Court did not clearly err in
denying Dussan’s request for a minor role adjustment on the drug conspiracy charge.
Section 3B1.2 of the Sentencing Guidelines provides for a two-level reduction in offense
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level if the defendant was a “minor participant” in the criminal activity. U.S. Sentencing
Guidelines Manual § 3B1.2 (2008). A minor participant is one “who is less culpable than
most other participants, but whose role could not be described as minimal.” Id. § 3B1.2
cmt. n. 5. We have set out the following factors for evaluating the appropriateness of a
role adjustment: “(1) the defendant’s awareness of the nature and scope of the criminal
enterprise; (2) the nature of the defendant’s relationship to the other participants; and (3)
the importance of the defendant’s actions to the success of the venture.” United States v.
Brown, 250 F.3d 811, 819 (3d Cir. 2001) (citing United States v. Headley, 923 F.2d 1079,
1084 (3d Cir. 1991)). The sentencing court is afforded broad discretion in the application
of this section, which is “heavily dependent on the facts of a particular case.” United
States v. Isaza-Zapata, 148 F.3d 236, 238 (3d Cir. 1998).
At sentencing, the District Court heard arguments from the Government and
Dussan’s counsel as to whether a minor-role downward adjustment was warranted. In
denying the adjustment, the Court discussed Dussan’s extensive involvement in the drug
conspiracy: Dussan was in direct communication with the crewmen importing the drugs on
a ship, made arrangements to pick up the drugs from the pier, traveled to Newark, New
Jersey to do so, and enlisted and directed another individual to assist him. Dussan was a
key player, and instrumental in organizing and effecting the drug conspiracy. Hence the
Court did not err (let alone clearly err) in denying Dussan’s request for a minor-role
adjustment.
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B. Acceptance of Responsibility Adjustment
Dussan next asserts that the District Court committed legal error in denying him a
downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. He argues
that it did not consider the totality of the circumstances, but instead improperly assumed
Dussan was ineligible for the adjustment.
Though a defendant’s “voluntary termination or withdrawal from criminal conduct
or associations” is an appropriate consideration in determining whether a defendant has
accepted responsibility, U.S.S.G. § 3E1.1 cmt. n. 1(b), it is only one relevant factor (albeit
an important one). We cannot determine from this record whether the Court considered
the totality of the circumstances, or committed an error of law by concluding that Dussan
was ineligible for the adjustment because he committed a crime while on bail awaiting
sentencing. See United States v. McDowell, 888 F.2d 285, 293 n.2 (3d Cir. 1989) (“The
trial judge has the obligation to assess the totality of the situation in determining whether
the defendant accepted responsibility. This includes not only what plea the defendant
offered, but also whether the defendant exhibited remorse, whether he evaded capture, and
many other factors.”). The Presentence Investigation Report incorrectly stated that Dussan
was “ineligible” for the adjustment, and the Court stated at sentencing that “the Probation
Department has got it exactly right,” which seems to indicate the Court agreed Dussan was
“ineligible.” (App. at 115.) Similarly, the Court appeared to agree with the Government’s
statement that Dussan “no longer qualifie[d]” for the adjustment. (App. at 111.) On the
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other hand, the Government argues that the Court properly considered the totality of the
circumstances, pointing to its statements (1) that “many Judges reject acceptance of
responsibility” based on a defendant’s conduct while on release, and (2) denying the
adjustment was “fair treatment.” (App. at 110, 115.)
Both interpretations of the record are plausible, and if the Court’s denial of the
adjustment were based on its assessment of the totality of the circumstances, we likely
would affirm.2 Indeed, the Court may very well reach the same conclusion (and impose
the same sentence) on remand. However, as we need more information to conduct our
review, we vacate and remand for resentencing.3
2
As the District Court correctly recognized, the acceptance-of-responsibility
determination is made after the offenses are combined. See United States v. Cohen, 171
F.3d 796 (3d Cir. 1999) (“[M]ultiple counts of conviction must be grouped before an
adjustment can be made for acceptance of responsibility . . . .”); McDowell, 888 F.2d at
293 (“[T]he Guidelines specify that [the acceptance-of-responsibility] adjustment should
be made only after the counts are combined.”). In other words, the Court could not make
separate acceptance-of-responsibility determinations for the counterfeiting charges and
the drug conspiracy charge.
3
Dussan also argues that the Court did not sufficiently explain its sentence and
failed to acknowledge two of his arguments in support of a downward variance. One of
those arguments—Dussan’s alleged cocaine abuse—has no factual basis in the record
other than defense counsel’s uncorroborated assertion. Without more, the Court was not
obligated to address this argument. It may wish to address Dussan’s other argument—his
attempt to assist authorities—at resentencing.
As to the Court’s explanation of its sentence, its meaningful consideration of
Dussan’s case is shown by its thoughtful questioning of the witnesses and Dussan, as well
as its statements throughout the sentencing hearing. However, further explanation on
remand of its consideration of the § 3553(a) factors will ease our reasonableness review.
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