NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-4512
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UNITED STATES OF AMERICA
v.
MIKELL NESBITT,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 09-cr-00181)
District Judge: Hon. Harvey Bartle, III
Submitted March 18, 2011
Before: BARRY, CHAGARES, and ROTH, Circuit Judges.
(Filed: March 18, 2011)
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OPINION
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CHAGARES, Circuit Judge.
Defendant Mikell Nesbitt appeals the sentence imposed upon him by the District
Court after he pleaded guilty to one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). For the reasons set forth below, we will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly recite
the essential facts. On August 19, 2009, Nesbitt pleaded guilty to a one-count indictment,
charging him with possession of a firearm as a previously convicted felon. During his
plea colloquy, Nesbitt admitted that on October 25, 2008, he visited a female
acquaintance who is the legal owner of two guns. While in her home, he stole her Glock
9-millimeter pistol from underneath her bed. Nesbitt was taken into custody on October
28, 2008, after Philadelphia police recovered this gun during the execution of search and
arrest warrants at his residence. Nesbitt waived his rights under Miranda v. Arizona, 384
U.S. 436 (1966), and admitted stealing the Glock pistol.
The Probation Office prepared a Presentence Investigation Report (“PSR”), in
which it determined that, pursuant to the United States Sentencing Guidelines (the
“Guidelines”), the base offense level was 24. Nesbitt was subject to a two-level
enhancement, however, because the firearm was stolen. Taking into account a three-
level reduction for acceptance of responsibility, the total offense level was 23. The PSR
additionally concluded that Nesbitt qualified for a criminal history category of V, based
upon his extensive criminal record, which included two drug-trafficking convictions, as
well as convictions for robbery, drug possession, vandalism, and driving under the
influence. Nesbitt’s advisory Guidelines sentence range was, therefore, 84 to 105 months
of imprisonment. Both parties agreed that this was the appropriate advisory Guidelines
range. At the time of sentencing, Nesbitt was serving a state sentence of eight to sixteen
years of imprisonment for two armed robberies, to which he had also pleaded guilty.
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At the sentencing hearing, the District Court first heard from the Government.
The Government drew attention to the fact that Nesbitt began committing crimes at the
age of 16 and that during the month of October 2008, at the age of 31, Nesbitt had not
only committed the crime at issue in this case, but also had committed an armed home
invasion robbery, during which he sexually touched the homeowner, and an armed
robbery of a 7-Eleven convenience store, in which he made the store clerk kneel on the
stockroom floor while Nesbitt held a gun to the clerk’s head and demanded money. At
the time of these offenses, Nesbitt was on bail for two separate crimes — retail theft and
vandalism.
The Government also reminded the District Court that Nesbitt had attempted to
provide assistance to the authorities during a proffer session. Although the assistance fell
short of that which would warrant a Government motion for a downward departure, the
Government suggested that the District Court could consider it in mitigation under 18
U.S.C. § 3553(a). Nonetheless, based upon Nesbitt’s extensive criminal record, his
escalating level of violence, and the need for specific and general deterrence, the
Government asked the District Court to impose a sentence at the top of the advisory
Guidelines range, which would be served consecutively to the state sentence.
The District Court then heard from the defense. Nesbitt called his mother as a
witness on his behalf. She pleaded for leniency, stating that Nesbitt was extremely
dedicated to his children and provided care and support to the best of his ability to his
extended family. She stated that Nesbitt committed these crimes because he “just got
mixed up, just got stressed out, he was so stressed not being able to support his children
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and his family.” Appendix (“App.”) 55. She testified that another judge threatened to
incarcerate Nesbitt if he continued to fail to meet his child support obligations. Thus,
Nesbitt “was trying to get the money from somewhere.” App. 54. She stated that Nesbitt
had started smoking “wet”1 and that he wasn’t acting like himself. App. 54-55. During
this testimony, the District Court interjected on occasion to ask clarifying questions.
Nesbitt’s counsel argued that Nesbitt had a very long history of drug abuse that
was, in essence, a way of self-medicating otherwise untreated depression. Counsel
suggested that the combination of drugs, depression, and a need for money led Nesbitt to
commit the crime for which he was convicted.
Counsel further argued that Nesbitt should not receive a lengthy federal sentence
because, had Nesbitt been prosecuted in state court for the firearm offense, the additional
count may not have caused a significant increase in the sentence that he received for the
armed robberies. Defense counsel also summarized the information that Nesbitt had
provided to the Government in an attempt to assist with other investigations, arguing that
these efforts on Nesbitt’s part militated in favor of a lenient sentence.
Ultimately, Nesbitt’s counsel asked the court to impose either a sentence at the
very bottom of the advisory Guidelines range to run largely concurrently to Nesbitt’s
state sentence or to impose a sentence well below the advisory Guidelines range — two
and one-half years — to run consecutively to his state sentence. Before imposing its
sentence, the District Court engaged defense counsel in a line of questioning regarding
1
“Wet” is a slang term for a cigarette made from a mixture of marijuana and
Phencyclidine (“PCP”).
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the impact that a concurrent, as opposed to a consecutive, sentence might have on
Nesbitt’s ability to receive parole on his state sentence.
Finally, the District Court heard from Nesbitt himself, who apologized for his
criminal actions. Nesbitt explained: “I lost my job which caused me not to be able to
care for my children, my mother and my grandmother, and my bills…. [T]hat hurt my
pride and my ego. . . . I fell weak to drugs.” App. 73.
After hearing from the parties, the District Court properly calculated the applicable
advisory Guidelines sentence range of 84 to 105 months, then imposed a sentence at the
very bottom of that range to run consecutively with his state sentence, stating in pertinent
part:
[I]n fashioning a sentence, I must fashion one that is sufficient but not greater than
necessary. And under Title 18 United States Code Section 3553(a), I must take
into account certain factors before determining your sentence. Those factors
include the nature and circumstance of the offenses, and history and characteristics
of you, the defendant; the seriousness of the offense; the need to promote respect
for the law; the need to provide a just punishment for the offense; the need to
afford adequate deterrence to criminal conduct; the need to protect the public from
further crimes of you the defendant.
Needless to say, Mr. Nesbitt, the crime for which you have pleaded guilty is a
serious one. A firearm in possession of a convicted felon is a menace to the city of
Philadelphia in this region, and to all the citizens who live here. The safety of the
community is a very critical issue these days, and people such as yourself who are
carrying firearms undermine the safety of our community, and indeed the general
welfare of our community. So there’s no doubt that your crime is a serious
one. . . .
You have a very long criminal history for a man who’s 31 years old. Not only do
you have several drug convictions, but you also have two robbery convictions. In
each case, you possessed a firearm. . . .
Your mother talked about your children, how important they are to you. You have
to remember that that woman who faced a gun and the clerk in the convenience
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store who faced a gun on his head, they’re also the children of people. And you
weren’t thinking about that, and I can’t imagine you would be happy if someone
did that to one of your children. . . .
You didn’t learn your lesson when you were sentenced previously in the Court of
Common Pleas for your drug offenses, and then the crimes escalated and turned
into robbery.
Society has to be protected from you, Mr. Nesbitt. And under the totality of the
circumstances, I’m going to commit you into the custody of the Attorney General
of the United States for a period of imprisonment of 84 months. That sentence
will be consecutive to your sentence by the judge of the Court of Common
Pleas. . . .
It’s truly a sad day, Mr. Nesbitt, and I feel for your mother who was here to
support you and who did her best. Unfortunately, sometimes in these sentencing
cases, the family members are punished just as much as the person who commits
the crime. That’s an unfortunate consequence, and there’s noting that we can do
about that. So think about that as you serve your sentence. And I hope when you
are finally released, you will become a law-abiding citizen and take care of your
children and be a credit to society. But until that time, you will have to serve your
sentence.
App. 74-78.
II.
The District Court properly exercised jurisdiction over this criminal matter
pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the District Court’s final
judgment of sentence pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Pursuant to the mandate of United States v. Booker, “[t]he courts of appeals
review sentencing decisions for unreasonableness.” 543 U.S. 220, 264 (2005).
According to our post-Booker precedent, district courts must follow a three-step
sentencing process:
(1) Courts must continue to calculate a defendant's Guidelines
sentence precisely as they would have before Booker.
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(2) In doing so, they must formally rule on the motions of both
parties and state on the record whether they are granting a departure
and how that departure affects the Guidelines calculation, and take
into account our Circuit's pre-Booker case law, which continues to
have advisory force.
(3) Finally, they are required to exercise their discretion by
considering the relevant § 3553(a) factors, in setting the sentence
they impose regardless whether it varies from the sentence
calculated under the Guidelines.
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (citations, quotations, and
brackets omitted). On appeal, Nesbitt takes issue with the District Court’s consideration
of the relevant § 3553(a) factors at the third step of the sentencing process. Nesbitt
contends that the District Court’s failure to consider essential aspects of his history and
character, as required by 18 U.S.C. § 3553(a)(1), rendered the sentence imposed upon
him procedurally unreasonable.
III.
We have made clear that a sentence “will be upheld as reasonable if the record as a
whole reflects rational and meaningful consideration of the factors enumerated in 18
U.S.C. § 3553(a).” United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006)
(quotation omitted). This “standard requires a deferential review of the record developed
by the district court to determine whether the final sentence, wherever it may lie within
the permissible statutory range, was premised upon appropriate and judicial consideration
of the relevant factors.” Id.
“After settling on the appropriate sentence, [the District Court] must adequately
explain the chosen sentence to allow for meaningful appellate review. In other words, it
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is not enough for the district court to carefully analyze the sentencing factors. A separate
and equally important procedural requirement is demonstrating that it has done so.”
United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010) (quotations and citation
omitted). As such, the sentencing judge is obligated to “set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007) (citing United States v. Taylor, 487 U.S. 326, 336-37 (1988)). Still, the
District Court need not make explicit findings as to each of the §3553(a) factors “if the
record otherwise makes clear that the court took the factors into account.” United States
v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007). A brief discussion will suffice where it is
apparent from the record that the District Court “determined that defendant’s arguments
were simply insufficient to warrant a below-Guidelines sentence.” United States v.
Olfano, 503 F.3d 240, 245 (3d Cir. 2007).
At sentencing, defense counsel argued in favor of a sentence far below the
advisory Guidelines range, urging the District Court to consider Nesbitt’s personal
history and characteristics — his depression, his lengthy history of drug abuse, his
commitment to his family, and his efforts to assist authorities in other investigations — in
mitigation. On appeal, Nesbitt argues that the District Court’s sentence was procedurally
unreasonable because it ignored these potentially mitigating factors, instead improperly
emphasizing the seriousness of the present offense and Nesbitt’s extensive criminal
history. We disagree.
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The record summarized above makes clear that the District Court heard and
considered Nesbitt’s arguments at sentencing. Indeed, the District Court engaged
Nesbitt’s mother with questions pertaining to her testimony about the defendant’s
personal circumstances. In our view, such a record does not suggest that the District
Court disregarded or ignored the evidence in favor of leniency; rather, it demonstrates
that the District Court took account of the mitigating evidence and ultimately came to a
reasoned, albeit partially implicit, conclusion that, despite Nesbitt’s arguments to the
contrary, his conduct over the years was that of a serious recidivist, not that of a person
who had merely lost his way, and that certain § 3553(a) factors — namely, the
seriousness of the offense, the need for individual deterrence, and the interest in
protecting the public from the defendant’s future crimes — substantially outweighed the
potentially mitigating factors that Nesbitt pointed to in support of a below-Guidelines
sentence. In other words, in finding that a sentence at the bottom of the Guidelines range
was sufficient, but not greater than necessary to effect the appropriate amount of
deterrence and to reflect the seriousness of the crime, the District Court implicitly
expressed a reasoned judgment that the arguments it had heard and considered in favor of
leniency “were simply insufficient to warrant a below-Guidelines sentence.” Olfano, 503
F.3d at 245. The District Court having premised the sentence on appropriate and judicial
consideration of the relevant factors, we cannot conclude that the sentence imposed upon
Nesbitt was procedurally unreasonable.
IV.
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For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.
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