Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-31-2008
USA v. Branch
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3516
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3516
UNITED STATES OF AMERICA
v.
CREMNE BRANCH,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 05-cr-0146
(Honorable Christopher C. Conner)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 20, 2008
Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge,
and O’CONNOR, Retired Associate Justice *
(Filed: December 31, 2008)
OPINION OF THE COURT
*
The Honorable Sandra Day O’Connor, Retired Associate Justice of the Supreme
Court of the United States, sitting by designation.
SCIRICA, Chief Judge.
Defendant Cremne Branch was arrested after facilitating the sale of crack cocaine
to a confidential informant. Branch pleaded guilty to a one-count information charging
him with possession with intent to distribute crack cocaine in violation of 21 U.S.C. §
841(a)(1), and was sentenced to 210 months incarceration, fees and fines of $1,500, and
three years of supervised release. Branch raises two contentions on appeal: (1) the
District Court, by misappreciating the advisory nature of the Sentencing Guidelines’
100:1 crack/powder cocaine disparity, imposed an unreasonable sentence, and (2) the
U.S.S.G. § 4B1.1 career offender enhancement was improperly applied because his
violation of Pennsylvania’s reckless endangerment statute does not qualify as a predicate
“crime of violence” under U.S.S.G. § 4B1.2.1
I.
Branch contends the District Court failed to recognize its post-Booker sentencing
discretion with regard to the Guidelines’ 100:1 crack /powder cocaine disparity when it
refused to grant his request for a downward variance. He further contends this refusal
rendered his sentence longer than necessary to “promote the purposes of sentencing under
18 U.S.C. § 3553(a)(2).” Appellant Br. 17. We review a sentencing court’s decision for
reasonableness under a two-step analysis, Gall v. United States, 128 S. Ct. 586, 597
1
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
(2007), and apply an abuse-of-discretion standard. United States v. Wise, 515 F.3d 207,
217 (3d Cir. 2008).
In the first step of our analysis, we must “ensure that the district court committed
no significant procedural error in arriving at its decision, ‘such as . . . treating the
Guidelines as mandatory.’” Id. at 217 (quoting Gall, 128 S. Ct. at 597). In United States
v. Gunter, we recognized “a sentencing court errs when it believes that it has no
discretion to consider the crack/powder cocaine differential incorporated in the
Guidelines . . . as simply advisory.” 462 F.3d 237, 249 (3d Cir. 2006). Our view of the
advisory nature of the crack/powder disparity was later endorsed by the Supreme Court in
Kimbrough v. United States, 128 S. Ct. 558, 575 (2007) (deciding “it would not be an
abuse of discretion for a district court to conclude . . . that the crack/powder disparity
yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes”). If we
determine a sentencing court “believed it was bound to follow the Guidelines for crack
offenses,” we will vacate the defendant’s sentence and remand for resentencing. Wise,
515 F.3d at 222. However, “the District Court is under no obligation to impose a
sentence below the applicable Guidelines range solely on the basis of the crack/powder
cocaine differential.” Gunter, 462 F.3d at 249.
There is ample proof the District Court fully appreciated its freedom to consider
the crack/powder disparity when imposing the sentence. During sentencing, the court
said:
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[W]ith respect to your objection specifically to the disparity and treatment
between cocaine and cocaine base, the court, this court believes it is bound
by the Third Circuit precedent.
The Third Circuit has spoken to this issue several times, and
although it is within the court’s discretion to take the disparity into
consideration, the court will decline to stray from that Third Circuit
precedent. I refer counsel to the Third Circuit’s most recent decision in
United States v. Scott, [178 F. App’x 140 (3d Cir. 2006)], which is a 2006
case, and to United States v. Watkins, [66 F. App’x 325 (3d Cir. 2003)],
which is a 2003 Third Circuit decision . . . and to United States v. Frazier
[981 F.2d 92 (3d Cir. 1992)], which is a 1992 Third Circuit decision, and
for all of those reasons the objection to that disparity is overruled, or
rejected.
(App. 32-33) (emphasis added). This statement clearly demonstrates the court’s
recognition of its discretion to factor the crack/powder disparity into its sentencing
decision. Additionally, because the disparity does not create an “obligation to impose a
[lower] sentence,” Gunter, 462 F.3d at 249, our conclusion is not altered by the District
Court’s refusal to grant Branch’s request.2 As in Wise, “there is simply no indication that
the District Court believed it lacked authority to consider the crack/powder cocaine
2
Branch argues the court’s statement that it was “bound by . . . Third Circuit
precedent,” indicates a failure to appreciate its authority to consider the crack/powder
cocaine disparity in fashioning his sentence. This argument is without merit. First, this
reading of the court’s statement squarely contradicts the court’s unequivocal recognition
of its “discretion to take the disparity into consideration.” App. 32. Second, the court
referred specifically to three decisions of this court, none of which suggest the Guidelines
are mandatory: Frazier stands for the uncontroversial proposition that the crack/powder
disparity is not unconstitutional, 981 F.2d at 96, and Watkins, a non-precedential decision,
simply reaffirmed Frazier. 66 F. App’x at 326. Scott, another non-precedential decision,
echoed Gunter by holding a sentencing court is not required to give a non-Guideline
sentence because of the crack/powder cocaine disparity. 178 F. App’x at 145. Because
nothing in these decisions suggests mandatory adherence to the Guidelines, we reject
Branch’s interpretation.
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disparity as part of its § 3553(a) analysis.” Wise, 515 F.3d at 222. Accordingly, we find
no procedural error.
In the second step of our analysis, we review for substantive reasonableness: a
sentence must be “premised upon appropriate and judicious consideration of the relevant
[18 U.S.C. § 3553(a)] factors.” United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.
2006). This step is deferential, and “[a]s long as a sentence falls within the broad range
of possible sentences that can be considered reasonable in light of the § 3553(a) factors,
we must affirm.” Wise, 515 F.3d at 218.
During sentencing, the District Court determined:
[i]t is clear to the court that the defendant has been undeterred by prior
terms of imprisonment, and unfortunately there exists a strong likelihood of
recidivism. In light of these facts the court finds that a sentence in the mid
range of the guidelines is appropriate to meet sentencing objectives . . . in
light of all the considerations set forth in Section 3553(a).
App. 42-43. Based on this statement by the District Court, and our recognition that the
trial court is “in the best position to determine the appropriate sentence,” United States v.
Cooper, 437 F.3d 324, 330 (3d Cir. 2006), we find Branch’s sentence to be substantively
reasonable.
II.
In the second issue on appeal, Branch contends the District Court erred by
applying a U.S.S.G. § 4B1.1 career offender enhancement. To qualify for the
enhancement, § 4B1.1 requires the defendant to have “at least two prior felony
5
convictions of either a crime of violence or a controlled substance offense.” U.S.S.G.
§ 4B1.1(a)(3). According to Branch, his conviction for recklessly endangering another
person in violation of Pennsylvania statute 18 P.S. § 2705 is not a “crime of violence,”
and, therefore, the § 4B1.1 career offender enhancement does not apply. Because “[t]he
proper construction of the term ‘crime of violence’ is a question of law, . . . our review is
plenary.” United States v. McQuilken, 97 F.3d 723, 727 (3d Cir. 1996).
The term “crime of violence” is defined in § 4B1.2(a) and the attendant
Application Notes. Application Note 1 categorizes offenses as “crimes of violence” if,
inter alia, “the conduct set forth in the count of which the defendant was convicted . . . by
its nature, presented a serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2 Application Note 1 (emphasis added). This definition closely parallels the
language of Pennsylvania’s reckless endangerment statute, which defines the offense as
“recklessly engag[ing] in conduct which places or may place another person in danger of
death or serious bodily injury.” 18 P.S. § 2705. Where language of the criminal statute
under which the defendant was previously convicted “so closely tracks the language of
the Guideline that the defendant’s conviction necessarily meets the Guideline standard,
the district court need look no further than the statute and need not inquire into the
underlying conduct charged.” United States v. Parson, 955 F.2d 858, 872 (3d Cir. 1992).
In violating Pennsylvania’s reckless endangerment statute, Branch “recklessly . . .
place[d] or may have place[d] another person in danger of death or serious bodily injury.”
6
18 P.S. § 2705. Looking no further than the words of the Pennsylvania statute, Parson,
955 F.2d at 872, such conduct “present[s] a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2 Application Note 1; see also Parson, 955 F.2d at 874 (holding
violation of Delaware’s reckless endangerment statute constitutes “crime of violence” for
purposes of § 4B1.1). Accordingly, Branch’s violation of 18 P.S. § 2705 was a crime of
violence, and the career offender enhancement was proper.
III.
Finding no error, we will affirm the judgment of conviction and sentence.
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