Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-4-2008
USA v. McKinnon
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5314
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Recommended Citation
"USA v. McKinnon" (2008). 2008 Decisions. Paper 163.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-5314
___________
UNITED STATES OF AMERICA
v.
MICHAEL MCKINNON
Appellant
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 03-cr-00251)
District Judge: The Honorable Sylvia H. Rambo
___________
Submitted Under Third Circuit LAR 34.1(a)
OCTOBER 31, 2008
BEFORE: McKEE, NYGAARD, and SILER,* Circuit Judges.
(Filed: December 4, 2008)
___________
OPINION OF THE COURT
*Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court
of Appeals for the Sixth Circuit, sitting by designation.
___________
NYGAARD, Circuit Judge.
Appellant Michael McKinnon was convicted of three counts in a six-count
indictment: Count One, distribution and possession with intent to distribute crack cocaine,
cocaine hydrochloride, marijuana, and other controlled substances, in violation of 21
U.S.C. § 841(a)(1); Count Three, conspiracy to launder proceeds of the distribution of
controlled substances, in violation of 18 U.S.C. § 1956(h); and Count Four, possession
and use of firearms during and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924. The District Court sentenced McKinnon to an aggregate sentence of forty
years’ imprisonment, five years’ supervised release, a $1,000.00 fine and $300.00 special
assessment.
On appeal, McKinnon raises three issues, all of which are meritless. McKinnon
first argues that the Government violated his equal protection rights because it used
peremptory challenges to intentionally exclude African-American venirepersons, based
on their race. Next, McKinnon maintains that Count IV of the indictment was defective
because it was duplicitous. Lastly, McKinnon submits that his sentence was unreasonable
because the District Court failed to rule on each of his arguments for a lesser sentence.
We will affirm.
A.
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Batson v. Kentucky, 476 U.S. 79 (1986), created a three-step framework for judges
to employ in determining whether a prosecutor has violated the accused’s right to the
equal protection of the law. We will go directly to the second step of the analysis.1 At
step two, the burden shifts to the Government to explain the racial exclusion by offering
race-neutral reasons for the strikes. Here, our review of the record regarding the three
challenged individuals — Gingrich, Manari and Polite — reveals that the Government
prosecutor did not discriminate in exercising peremptory challenges. We give great
deference to the District Court's decision to credit the prosecution's justification for
striking these potential jurors. After reviewing the record, we cannot say the District
Court's finding that the prosecutor had a nondiscriminatory motive for these potential
jurors was “completely devoid of minimum evidentiary support displaying some hue of
credibility.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).
B.
McKinnon next argues that Count IV of the indictment was duplicitous — an
argument he acknowledges he failed to present to the District Court. We have
consistently held that we will not consider an issue such as this that is being raised for the
1
At the first step of the Batson analysis, any question regarding the existence of
a prima facie showing of discrimination becomes moot where, as here, the prosecutor
offers an explanation of the peremptory challenge before the district court expressly
addresses the prima facie issue.
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first time on appeal. Accordingly, we decline to consider McKinnon’s argument that his
indictment was duplicitous.
C.
In reviewing criminal sentences we look for any 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. Second,
using a reasonableness test, we look to see if the District Court abused its discretion.
McKinnon’s arguments primarily is that the District Court allegedly failed to specifically
address certain of his arguments at the sentencing hearing.
McKinnon’s counsel successfully argued for a sentence below the guideline range
of life imprisonment. The District Court listened, reviewed and discussed and rejected
counsel’s other arguments in support of a lesser sentence than it imposed. The District
Court’s sentence was not unreasonable nor were its findings clearly erroneous. Hence,
we will affirm both the conviction and sentence.
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