Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-22-2007
USA v. Bonner
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2712
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2712
UNITED STATES OF AMERICA
v.
KEVIN ALAN BONNER,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D. C. No. 05-cr-00069)
District Judge: Hon. Arthur J. Schwab
Submitted under Third Circuit LAR 34.1(a)
on May 18, 2007
Before: FISHER and ROTH, Circuit Judges
RAMBO*, District Judge
(Opinion filed : August 22, 2007)
*Judge Sylvia H. Rambo, United States District Judge, for the Middle District of
Pennsylvania, sitting by designation.
OPINION
ROTH, Circuit Judge:
Kevin Alan Bonner appeals his judgment of sentence on the ground that the District
Court failed to rule on his motion for downward departure. Bonner contends that the failure
to rule on this motion was a prejudicial procedural error affecting his sentence.
I. Factual and Procedural History
On May 23, 2003, Bonner was arrested for the possession of more than five grams of
crack cocaine and selling this crack cocaine at a local bar. Bonner pleaded guilty on
February 3, 2006, to one count of possession with intent to distribute and distribution of five
or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii).
This was not Bonner’s first conviction of a drug offense. In a span of two years, between
1992 and 1994, Bonner was convicted of six drug related offenses. He pleaded guilty to all
of those charges in a single consolidated plea and sentencing hearing.
Under U.S.S.G. § 2D1.1, Bonner’s instant offense carries an adjusted offense level
of 23, and an advisory guidelines sentence of 84 to 105 months. The mandatory minimum
sentence for Bonner’s violation of § 841(a)(1) is 120 months. Because of his previous
convictions, Bonner qualified as a career offender with a category VI criminal history under
U.S.S.G. § 4B1.1. This status increased the offense level to 34, resulting in a guidelines
sentence of 262 to 327 months.
2
Before sentencing, Bonner requested a downward departure arguing that his criminal
history was overstated. Bonner also asked the court to consider the 100-to-1 crack to powder
cocaine sentencing disparity in imposing a sentence sufficient but not greater than necessary
to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2).
In its written memorandum setting forth its tentative findings and rulings, the District
Court agreed that Bonner’s his criminal history was “at least somewhat overstated within the
meaning of Shoupe [35 F.3d 835 (3d Cir. 1994)].”
At the sentencing hearing, after hearing arguments from both sides regarding Bonner’s
status as a career offender and motion for downward departure, the District Court imposed
a sentence of 180 months. In regard to Bonner’s criminal history and to the § 3553(a)
elements, the court stated:
The Court deems that the low end of the advisory guideline range, 262
months, to be excessive, as does the Probation Office under all the
circumstances, including the amount of drugs involved in the previous
convictions, the fact that his designation as a career offender while accurate
under the guidelines somewhat exaggerates his criminal history to some extent
since the offenses, qualifying offenses, occurred in a relatively short period
and he was sentenced in one proceeding over 11 years ago.
In addition, the court reasoned that Bonner’s age had a bearing on the unlikelihood
of his presenting a danger to the community after serving a sentence of 180 months. The
District Court, however, did not explicitly rule on Bonner’s request for downward departure
at this time. Bonner timely filed an appeal to this Court.1
1
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The District Court had
jurisdiction pursuant to 18 U.S.C. § 3231.
3
II. Analysis
Our precedents, following United States v. Booker, 543 U.S. 220 (2005), instruct
district courts to follow a three-step sentencing process in determining an appropriate
sentence to impose. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). First, a
district court must calculate a defendant’s guidelines sentence precisely as it would have
before Booker. Second, a district court must formally rule on the motions of the parties and
state on the record whether it is granting a departure and how that departure affects the
guidelines calculation, taking into account our pre-Booker case law which continues to have
an advisory force. Third, a district court is required to exercise its discretion by considering
all relevant § 3553(a) factors in setting a sentence.
Bonner contends that the District Court, by not formally ruling on his motion for
departure, did not properly follow step two of this sentencing process. Further, Bonner
alleges that this failure to expressly state whether the court granted departure and its effect
on the advisory sentence calculation makes it impossible to determine the consistency and
reasonableness of Bonner’s sentence. Both Bonner and the government express the belief
that the record reveals that the District Court did grant Bonner’s motion for downward
departure, even though the court did not formally rule on Bonner’s motion or state how this
departure affected Bonner’s sentence.
We agree that the granting of the motion for downward departure is implied by the
sentence imposed which falls considerably below the guidelines’ range. In its preliminary
consideration of the objections to the Presentence Report and at the sentencing hearing, the
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District Court expressed its concern that the criminal history was overstated. Although we
urge the district courts to fully explain their consideration of and rulings on motions to
depart, we will consider the failure to rule on the motion to be a de facto granting of the
motion in view of the views expressed by the District Court and the imposition of a sentence
which falls considerably below the guideline range. Accord United States v. Colon, 474 F.3d
95, 99 n.8 (3d Cir. 2007) (considering a failure of District Court to make a departure from
the guidelines at step 2 to be a de facto denial of the motion for departure).
Moreover, the record shows that the District Court considered the § 3553(a) factors
including the nature and circumstances of the offense, the defendant’s history and
characteristics, the kinds of sentences available for the offense, the sentencing guidelines
range adopted by the United States Sentencing Commission, and any applicable policy
statements to avoid unwarranted sentence disparities. Therefore, applying a deferential
standard of review, we conclude that the District Court reasonably considered the motion to
depart and applied the required factors in sentencing Bonner to 180 months in prison. See
United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006).
IV. Conclusion
For the reasons set forth above, we will affirm the District Court’s judgment of
sentence.
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