NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-1918
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UNITED STATES OF AMERICA
v.
CEDRIC BROWN
a/k/a BLEED
CEDRIC BROWN,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No.3-08-cr-00445)
District Judge: Honorable Joel A. Pisano
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Submitted Under Third Circuit LAR 34.1(a)
June 23, 2011
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Before: CHAGARES, JORDAN and GREENAWAY, JR., Circuit Judges
(Filed: June 24, 2011)
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OPINION
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GREENAWAY, JR., Circuit Judge
Cedric Brown (“Brown” or “Appellant”) pled guilty to possessing with intent to
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distribute and distributing heroin and crack cocaine. The District Court sentenced him to
151 months of imprisonment. Brown now seeks review of this sentence, arguing that the
District Court committed a procedural error in imposing this sentence. For the reasons
set forth below, we will affirm the sentence.
I. Background Facts
We write primarily for the parties, and thus recount only the essential facts.
At Brown‟s sentencing, the District Court calculated his total offense level to be
30, but that level was increased to 32, due to Brown‟s status as a career offender. Based
on Brown‟s acceptance of responsibility for his actions, the total offense level was
reduced to 29. Brown‟s criminal history category was VI, resulting in a Guidelines range
of 151 to 188 months of imprisonment. Arguing that Brown‟s co-defendants had
received lesser sentences and that Brown‟s role in the drug distribution ring was limited,
Brown‟s counsel urged the District Court to apply the factors enumerated in 18 U.S.C. §
3553(a) in order to overlook the impact of Brown‟s career offender status, and impose a
sentence below the Guidelines range.
Before imposing sentence, the District Court considered Brown‟s numerous prior
convictions for dealing drugs, his personal history, the need for deterrence (both for
Brown and others in society), the need to provide substantial punishment, and the need to
provide some benefit to Brown in the form of educational and vocational opportunities.
Taking all of these factors into account, the District Court imposed a sentence at the
bottom of the Guidelines range.
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II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction,
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
“[P]ost- Booker, „the familiar abuse-of-discretion standard of review now applies
to appellate review of sentencing decisions.‟” U.S. v. Tomko, 562 F.3d 558, 561 (3d Cir.
2009) (quoting Gall v. U.S., 552 U.S. 38, 46 (2007)). That is, “appellate review of
sentencing decisions is limited to determining whether they are „reasonable.‟” Gall, 552
U.S. at 46.
III. Legal Standard
When imposing sentence, district courts must follow a three-step process:
(1) Courts must continue to calculate a defendant‟s Guidelines sentence
precisely as they would have before Booker.
(2) In doing so, they 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, 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) (quoting United States v. King,
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454 F.3d 187, 196 (3d Cir. 2006)) (internal citations omitted).1
“[A]ppellate review proceeds in two stages. It begins by „ensur[ing] that the
district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence — including an explanation for
any deviation from the Guidelines range.‟” Tomko, 562 F.3d at 567 (quoting Gall, 552
U.S. at 51). “If a district court‟s procedure passes muster, „we then, at stage two,
consider its substantive reasonableness.‟” Id. (quoting United States v. Levinson, 543
F.3d 190, 195 (3d Cir. 2008)).
IV. Analysis
Brown “contends that the District Court failed to adequately apply the relevant
factors enumerated in 18 U.S.C. § 3553(a) to the facts and circumstances of this case.”
(Br. for Appellant Cedric Brown 10.) Specifically, Brown argues that the District Court
failed to give proper consideration to “the nature and circumstances of the offense, the
kinds of sentences available, and, most importantly, the need to avoid unwarranted
sentencing disparities.” (Id. at 11.) Additionally, Brown argues that the District Court
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“As an aside, our Court has previously stated that we distinguish between
traditional departures based on a specific Guidelines provision and sentencing „variances‟
from the Guidelines that are based on Booker and the [18 U.S.C.] § 3553(a) factors.”
Gunter, 462 F.3d at 247 n.10 (citing United States v. Vampire Nation, 451 F.3d 189, 195
n.2 (3d Cir. 2006)).
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erred by placing “undue emphasis” on his prior drug convictions which resulted in
Brown‟s classification as a career offender. (Id. at 11-12.)
Reviewing the sentencing transcript, we conclude that the District Court did not
abuse its discretion in imposing a sentence of 151 months. At the sentencing hearing,
Brown‟s counsel argued that the District Court should not impose a sentence that is
“greater than necessary” and should consider the sentence disparities between Brown and
his co-defendants based on the relative drug amounts to which each defendant pled, as
well as the respective roles they played. (App. 58-59.) The District Court asked counsel
about the impact of Brown‟s career offender status. While acknowledging that the career
offender status was a “problem,” counsel emphasized that imposing a sentence that took
Brown‟s career offender status into account “just does not seem fair.” (Id. at 61.)
After hearing argument from Brown‟s counsel and the government, the District
Court noted that, after presiding over all of the co-defendants‟ cases, it was “familiar with
the various roles that people played in this drug distribution conspiracy.” (Id. at 65.) The
District Court recognized that although Brown was not the leader of the conspiracy, and
that the drug amount for which Brown was responsible was less than one of the other
defendants, he was an integral part of the conspiracy. Further, the District Court
recognized that it had to consider the fact that Brown‟s multiple drug convictions
required that he be sentenced as a career offender, which more than justified a Guidelines
sentence. The District Court noted that Brown‟s counsel offered a reasonable argument,
but emphasized that it “cannot justify sentencing lower than the guidelines range as a
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function of [Brown‟s] past criminal record.” (Id. at 66.)
V. Conclusion
In light of the District Court‟s reasoned analysis and thorough discussion of many
of the § 3553(a) factors, we conclude that the District Court did not abuse its discretion in
sentencing Brown to 151 months. The sentence is procedurally sound and substantively
reasonable. We will affirm the District Court‟s sentence.
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