Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-10-2007
USA v. Pinkston
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2789
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2789
UNITED STATES OF AMERICA
v.
KENYATTA PINKSTON,
Appellant
(D.C. Crim. No. 03-cr-00342-2)
No. 05-2790
UNITED STATES OF AMERICA
v.
MAWULDA PINKSTON,
Appellant
(D.C. Crim. No. 03-cr-00342-1)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
District Judge: The Honorable Garrett E. Brown, Jr., Chief Judge
Submitted Under Third Circuit LAR 34.1(a)
June 26, 2007
Before: BARRY, FUENTES, and JORDAN, Circuit Judges
(Opinion Filed: August 10, 2007)
OPINION
BARRY, Circuit Judge
Kenyatta Pinkston and Mawulda Pinkston were sentenced to terms of
imprisonment of 212 months and 190 months, respectively, and they appeal. The District
Court imposed the sentences after we affirmed the convictions but remanded for re-
sentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v.
Pinkston, 126 Fed. Appx. 537 (3d Cir. 2005). We will affirm. 1
I.
The Pinkston brothers, after an eight-day bench trial, were convicted of one count
of conspiracy to distribute and possession with intent to distribute more than fifty grams
of crack cocaine and seven counts of distribution and possession with intent to distribute
either powder cocaine or crack cocaine, all in connection with a drug distribution business
they operated in Trenton, New Jersey.2 The District Court initially sentenced Kenyatta to
1
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
2
The Pinkstons were identified as the regular suppliers of marijuana, cocaine, and
ecstacy for the government cooperator, a local drug dealer. The charges stemmed from a
total of seven controlled drug transactions – four of crack cocaine and three of powder
cocaine – by one or both of the Pinkstons during a three week period. The total amount
of drugs involved in the transactions was 126.9 grams of crack cocaine and 176.3 grams
of powder cocaine.
2
235 months imprisonment and Mawulda to 210 months imprisonment. On remand, and
in support of lower sentences, the Pinkstons primarily contended that Booker allowed the
District Court to consider the crack cocaine/powder cocaine differential as an equitable
consideration, and pointed to the Sentencing Commission’s recommendation to Congress
that it reexamine and adjust the differential.3 They also argued that, under Booker, a two-
point enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) should not apply because the
District Court did not find possession of a weapon beyond a reasonable doubt.
The District Court, in response, noted concerns with sentencing disparities among
the class of those convicted of crack cocaine offenses, as well as Congress’s policy
decision, on more than one occasion, to reject the Sentencing Commission’s
recommendation to adjust the crack cocaine/powder cocaine ratio, and stated: “I certainly
should consider those issues. I’m not bound by them. I don’t have to do it, but looking at
the wisdom of the Congress . . . [and] the sentencing commission, I think we should have
predictability and proportionality.” App. 50. It, thus, rejected the arguments addressed to
the crack cocaine/powder cocaine differential,4 continuing to believe that the sentences it
3
All other factors being equal, the statutory mandatory minimum sentence for a
conviction for dealing 5 grams of crack cocaine is the same as that for a conviction for
dealing 500 grams of powder cocaine. United States v. Gunter, 462 F.3d 237, 240 (3d
Cir. 2006). This 100:1 ratio is reflected throughout the guidelines’ suggested sentencing
ranges. See id. at 240 n.4.
4
The District Court rejected as well the argument addressed to the weapon enhancement,
noting that even if the beyond a reasonable doubt standard applied, which it did not, the
evidence satisfied that standard. We reject the Pinkstons’ “enhancement” argument,
which they reraise on appeal to us, without further discussion.
3
originally imposed were reasonable and that leniency based on the “unfairness” of the
crack cocaine penalty was not deserved. Nevertheless, the Court, crediting the letters
from the Pinkstons’ friends and family and the support of their family, believed that more
lenient sentences would, nonetheless, serve the interests of society and resentenced the
Pinkstons to near the bottom of the relevant guideline ranges. We review those sentences
for reasonableness. United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en banc).
We exercise plenary review over questions of law, including the interpretation of the
guidelines; where factual determinations were made, we review for clear error. Id.
Post-Booker, a district court must undertake a three-step sentencing process. It
must: (1) calculate, as before, the correct guidelines sentence, (2) explicitly rule on all
motions, including departure motions, and (3) exercise its discretion by considering the
relevant factors set forth in 18 U.S.C. § 3553(a). Gunter, 462 F.3d at 247. The crack
cocaine/powder cocaine differential arguments which the Pinkstons bring before us
implicate the District Court’s compliance with the last step.
Mawulda Pinkston argues on appeal that the District Court erred by “categorically
refusing” to consider the Sentencing Commission’s finding that the 100:1 ratio between
crack cocaine and powder cocaine is unjustified and erred in refusing to independently
evaluate the seriousness of crack cocaine offenses based solely on the fact that Congress
had failed to act on the Commission’s findings and recommendations. Kenyatta Pinkston
faults the District Court for believing itself bound to impose a sentence within the
4
guidelines range merely because Congress said so and, in believing itself so bound,
elevating the crack cocaine element of the offenses over all other concerns and the 18
U.S.C. § 3553(a) factors. Indeed, continues Kenyatta, the only goal of sentencing the
Court considered was incarceration and, thus, he received a sentence greater than was
necessary. He contends, finally, that we were wrong when we said that a sentence within
the guidelines range is more likely to be reasonable than one outside that range, see
United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), and he would have us say, instead,
that post-Booker, a guideline range is nothing more than a “suggestion.” (Kenyatta
Pinkston Br. at 24).5 We summarily reject this invitation.
The Pinkstons’ remaining contentions result, in their view, in but one conclusion:
the sentences were too long and, thus, were unreasonable. But the various contentions
which enable them to reach this conclusion cannot withstand scrutiny. The District Court
did, for example, consider what the Sentencing Commission had unsuccessfully asked
Congress to do and made it quite clear how it viewed the seriousness of the Pinkstons’
offenses separate and apart from what Congress had done or failed to do – the Pinkstons
were “multi-substance, substantial drug dealers, who presented a clear and present danger
to the community . . . and do so at this time,” App. 47; they “imperiled the community.”
Id. at 48. The Court found, moreover, that the crack cocaine differential was a “reasoned,
5
Because it was not raised before the District Court, we do not consider Kenyatta’s
argument, which we have rejected before, that the crack cocaine guideline has contributed
to unwarranted racial disparity.
5
reasonable policy choice by the Congress” reflecting Congress’s view – which has been
“steadfast” – that crack cocaine dealers should be sentenced more harshly than other drug
offenders, a view in which the Court concurred. Id. at 50-51. The Court also recognized
the advisory nature of the guidelines, including the crack cocaine provision; recognized
that it had the discretion to vary from the guidelines; and recognized, even in advance of
Gunter, that it could and should consider the crack cocaine/powder cocaine differential as
part of its consideration of § 3553(a) factors. It believed, however, after considering all
of the relevant § 3553(a) factors including but not limited to the crack cocaine provision,
that each of the Pinkstons’ guideline ranges, as calculated, was appropriate and, although
exercising leniency within those ranges, declined to impose sentences below them.
Because the District Court acted “reasonably in imposing the resulting
sentence[s],” Cooper, 437 F.3d at 329, after exercising its discretion by considering the
relevant § 3553(a) factors, we will affirm the judgments of the District Court.
6