Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-22-2008
USA v. Miranda
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4103
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4103
UNITED STATES OF AMERICA
v.
BREMEN MIRANDA
Bremen Miranda,
a/k/a Ace
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 06-cr-00052-7)
District Judge: Hon. Thomas I. Vanaskie
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 20, 2008
BEFORE: SMITH and COWEN , Circuit Judges
and THOMPSON*, District Judge
(Filed: October 22, 2008)
*Honorable Anne E. Thompson, Senior United States District Judge for the District of
New Jersey, sitting by designation.
OPINION
COWEN, Circuit Judge.
Appellant Bremen Miranda appeals from his criminal sentence entered by the
United States District Court for the Middle District of Pennsylvania. We will affirm.
I.
Miranda pled guilty to the charge of conspiracy to distribute and possess with
intent to distribute crack cocaine in violation of 21 U.S.C. § 846. The parties agreed to
recommend a finding that the quantity of crack was between 150 and 500 grams.
Miranda’s sentence therefore was subject to a statutory maximum term of 20 years (or
240 months). The presentence report calculated a Guideline sentencing range of 262 to
327 months. Because of the statutory maximum, his effective “range” was 240 months.
On October 10, 2007, Miranda appeared before the District Court for his
sentencing hearing. After reciting the Guideline calculations, the District Court stated its
intention of “taking into consideration the proposed changes to the guidelines that are to
go into effect November 1st.” (App43.) The District Court was thereby referring to the
upcoming changes in the Guidelines with respect to crack cocaine sentencing.
Accordingly, “the offense level in this matter would be reduced to 35, making an advisory
guideline range of 210 to 240 months, again, capped at the statutory maximum of 20
years.” (Id.) Counsel for Miranda then argued in some detail for an even lesser sentence
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of 12 to 13 years. Pointing out that the Guideline range was now advisory, he claimed
that “this is a classic example of true overrepresentation” of the seriousness of his client’s
crime. (App45.) The defense attorney also noted that “Congress is considering it to a
degree, because I have heard, as you have mentioned and when this proceeding started,
about some departures – some lessening of the severity of these crimes.” (App45-
App46.)
The District Court then made its sentencing decision. Initially, it summarized the
18 U.S.C. § 3553(a) sentencing factors. While noting the harshness of the sentence and
expressing some sympathy for the 26-year old defendant, the District Court emphasized
that Miranda was the leader and recruiter of a substantial drug trafficking operation. He
engaged in such criminal conduct even though he was then serving a suspended sentence
for a prior offense. The District Court also observed that firearms and violence were
involved in the scheme, “with a person being shot that was part of this conspiracy.”
(App49.) It therefore expressed a desire to impose a longer sentence on Miranda than the
sentences received by his lower-ranking co-conspirators. According to the District Court,
“[m]uch has been written about the disparity between crack and powder cocaine and I
have taken that into consideration in saying that I would follow the range that would be in
effect come November 1st.” (App50.) Noting that Congress itself had made a “policy
choice” to impose a higher sentence given the “very dangerous” nature of crack
distribution, the District Court stated:
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. . . . I have tried to consider all these factors that go into making a
sentencing decision, recognizing that I have only an advisory guideline
range, but it is an advisory one, so I would have to take that into
consideration, and having weighed all of the facts in this matter, I believe
that a sentence of 210 months is the appropriate sentence in this case. It’s
the minimum number of months in that advisory guideline range, but you
headed up a substantial organization.
(App51.)
The District Court then reiterated its reasoning after formally imposing the
sentence:
As I indicated, I have adopted the Pre-sentence Investigation Report, its
factual findings and guideline application that called for an advisory
guideline range of 240 months. I have exercised my discretion to impose a
sentence of 30 months below the advisory guideline range, based upon my
belief that the proposed changes to the guidelines will take effect on
November 1st, and it would not be fair in these circumstances to not apply
those changes in your particular case.
(App53.)
The District Court finally addressed Miranda personally. Recognizing that he was
a young man and that it was a “horrible sentence,” the District Court emphasized that it
could not excuse the behavior of “the leader of the organization.” (Id.) According to the
District Court, “these drugs” ruin lives, and this “stuff” could only be stopped by
imposing harsh sentences. (App54.)
Miranda filed a timely notice of appeal. Miranda challenges only the length of his
sentence, claiming that it was harsh, excessive, and unreasonable.
II.
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Miranda contends that his 210-month sentence should be overturned because
neither the District Court nor his sentencing counsel considered our ruling in United
States v. Gunter, 462 F.3d 237 (3d Cir. 2006).1 According to Miranda, we “recognized
that a sentencing court may consider the crack versus powder disparity of 100:1 in
imposing a reasonable sentence.” (Appellant’s Br. at 11 (citation omitted).) He therefore
asserts that the District Court committed plain error by failing to consider the disparity
issue as a 18 U.S.C. § 3553(a) sentencing factor and thereby improperly treating the
Guidelines themselves as mandatory. Furthermore, Miranda’s previous attorney allegedly
provided constitutionally ineffective assistance by not arguing Gunter. We must,
however, reject Miranda’s claims of plain error and ineffectiveness of counsel as lacking
in any real merit.
As the government thoroughly explains in its appellate brief, the District Court did
“consider the crack versus powder disparity in imposing a reasonable sentence” of 210
months. While it never mentioned Gunter itself by name, a sentencing court has no
obligation to cite a specific judicial decision. In fact, the District Court expressly
considered the issue of disparity several times at sentencing, acknowledging at one point
that “[m]uch has been written about the disparity between crack and powder cocaine.”
1
The District Court possessed jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Furthermore, we
generally apply an abuse of discretion standard in reviewing a criminal sentence. See,
e.g., Gall v. United States, 128 S. Ct. 586, 594 (2007).
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(App49-App50.) It even went so far as to apply proposed changes to the Guidelines
purportedly dealing with this disparity question. It accordingly relied on the proposed
amendments to reduce the range itself to 210 to 240 months and “exercised my discretion
to impose a sentence of 30 months below the advisory guideline range.” (App53.) The
District Court’s extensive ruling also included a discussion of both the specific
circumstances presented by the case itself as well as sentencing factors listed in 18 U.S.C.
§ 3553(a).
Contrary to Miranda’s characterization, it does not appear that the District Court
would have imposed an even lower sentence but incorrectly believed it lacked the legal
power to do so. While it acknowledged the harshness of the sentence and expressed some
sympathy for Miranda, the District Court clearly indicated that “a sentence of 210 months
is the appropriate sentence in this case.” (App51 (emphasis added).) Among other
things, it specifically noted that Miranda served as the leader and recruiter of a substantial
drug operation even while free on a suspended sentence for a prior offense. Furthermore,
because the conspiracy involved violence and the use of firearms, it was appropriate for
the District Court to find that Congress’s “policy choice” regarding crack cocaine had
special relevance here. (App50.) Noting that “[w]e have to stop this stuff,” the District
Court told Miranda that “we are only going to do it by imposing sentences that are harsh.”
(App54.) Otherwise, these drugs will continue to “ruin lives,” including “those who get
caught selling.” (Id.)
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Insofar as the District Court committed no sentencing error, Miranda’s ineffective
assistance of counsel theory must also be rejected. However, we further note that his
attorney at sentencing did appear to raise the disparity issue in his argument for a lesser
sentence. He specifically observed that “Congress is considering it to a degree, because I
have heard, as you have mentioned and when this proceeding started, about some
departures – some lessening of the severity of these crimes.” (App46.) Although the
attorney could have presented a more detailed argument with respect to disparity, he
apparently addressed the concept itself. In addition, the District Court was already well
aware of the issue of disparity, expressing its intent to reduce the Guideline range based
on the proposed changes even before defense counsel presented his sentencing theory.
Under the circumstances, the ineffectiveness claim offered on appeal lacks any merit
whatsoever.
III.
For the foregoing reasons, we will affirm the District Court’s sentence.
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