Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-11-2009
USA v. Alex Hetherington
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2564
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 08-2564
____________
UNITED STATES OF AMERICA
v.
ALEX HETHERINGTON,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-07-cr-00596-1)
District Judge: Honorable William H. Walls
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2009
Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges.
(Filed: May 11, 2009 )
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Alex Hetherington pleaded guilty to conspiracy to distribute and possess with
intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 for
which he was sentenced to 312 months of imprisonment. On appeal, Hetherington argues
that the District Court did not give meaningful consideration to his extensive cooperation
as a factor warranting a variance and as a result his sentence is unreasonable. For the
reasons set forth below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
The conviction in this case stems from Hetherington’s involvement in a large-scale
drug trafficking organization based in Mexico. On February 27, 2007, Hetherington was
arrested in a parking lot in Carlstadt, New Jersey while he was in the process of
transferring 212 kilograms of “sham” cocaine from a co-conspirator’s vehicle to his own
vehicle (unbeknownst to him, law enforcement officers had discovered the actual cocaine
and replaced it with a cocaine-like substance as part of a controlled delivery).
Hetherington received Miranda warnings upon arrest but indicated his willingness to
cooperate. In the days following his arrest, Hetherington made numerous monitored
phone calls in an unsuccessful effort to obtain the three million dollars which constituted
his payment for delivery of the cocaine so that the Government could seize the money.
As a result of other monitored calls, Hetherington helped law enforcement officers seize
sixty-four pounds of methamphetamine, which led to the arrest of two other individuals
who worked with Hetherington.
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On January 29, 2008, pursuant to a written agreement, Hetherington pleaded guilty
to a one-count superseding indictment which charged him with conspiring with others to
distribute and possess with intent to distribute five kilograms or more of cocaine contrary
to 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) and in violation of 21 U.S.C. § 846. In the plea
agreement, Hetherington stipulated that the amount of cocaine involved in his offense
was 212 kilograms. Hetherington’s base offense level of thirty-eight was adjusted
upwards four levels because of his leadership role in the offense and was reduced three
levels because of his acceptance of responsibility, thus resulting in a total offense level of
thirty-nine. This offense level, combined with a criminal history in category I, yielded a
Guidelines range of 262 to 327 months of imprisonment.
At sentencing on May 12, 2008, the Government did not move for a departure
pursuant to U.S.S.G. § 5K1.1 because it believed Hetherington was not completely
truthful and forthright about his criminal activities, and Hetherington did not challenge
the Government’s decision not to request a downward departure. Hetherington did argue
that a variance from the Guidelines range was warranted in light of his cooperation as
well as his work as a missionary for two years in Honduras. The District Court sentenced
Hetherington to 312 months of imprisonment, five years of supervised release, and a
special assessment of $100. Hetherington timely appealed his judgment of sentence.
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II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction to review the District Court’s judgment of sentence pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742. We review sentences for both procedural and substantive
reasonableness under an abuse of discretion standard pursuant to Gall v. United States,
128 S. Ct. 586, 597 (2007).
III.
Hetherington argues that the District Court did not give meaningful consideration
to his “extensive cooperation” with the Government as a mitigating factor under 18
U.S.C. § 3553(a)(1). Hetherington contends that the District Court rejected his arguments
for a variance on the basis of his cooperation because of the Government’s decision not to
request a downward departure under U.S.S.G. § 5K1.1. The Government responds that
the District Court acted within its discretion when it considered and rejected the variance
arguments because Hetherington’s cooperation was not “outside of the mainstream of
cooperation.”
Our post-Booker precedent instructs district courts to follow a three-step
sentencing process which entails calculating a defendant’s Guidelines sentence precisely,
formally ruling on any departure motions, and exercising discretion by considering the
relevant § 3553(a) factors. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
Hetherington’s challenge to the District Court’s consideration of his variance arguments
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within the framework of § 3553(a) pertains only to the third step under Gunter. We have
explained that “[w]hile a listing of factors may not, alone, be sufficient to demonstrate the
necessary consideration of relevant factors,” such consideration can be reflected from
“the record as a whole.” United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007).
Along these lines, a district court need not “discuss and make findings as to each of the
§ 3553(a) factors if the record makes clear the court took the factors into account in
sentencing.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). We expect the
record to reflect a district court’s “recognition of, and response to, the parties’ non-
frivolous arguments.” United States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006).
Here, in response to Hetherington’s arguments that the extent of his cooperation
warranted varying his sentence, the District Court stated: “I consider whatever you claim
he has done by way of cooperation as part of a general constellation of what makes this
person before me, what makes Alex Hetherington.” This statement reflects that the
District Court considered Hetherington’s cooperation as part of his overall history and
characteristics. Also, in response to Hetherington’s inquiry as to whether the District
Court was accepting his cooperation “as a 3553 consideration,” the District Court
explained: “I am considering this consideration and note that he has been given credit for
it in the acceptance of responsibility.” When Hetherington continued to press his
cooperation argument and characterized the “scope of the cooperation” as
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“extraordinary,” the District Court replied that “[i]t doesn’t take it out of the mainstream
of cooperation” and it “falls short.”
Therefore, the record is clear that the District Court did consider Hetherington’s
arguments that he deserved a variance because of his cooperation but nonetheless was
unpersuaded by these arguments. Because the record reveals the District Court’s
consideration of Hetherington’s arguments for a variance in light of the § 3553(a) factors
as well as an explanation of why the District Court chose not to exercise its discretion to
vary his sentence, we cannot conclude that the sentence is unreasonable. See United
States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (explaining that the district court’s
decision not to give the defendant’s “mitigating factors the weight that [the defendant]
contends they deserve does not render [the] sentence unreasonable”).
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
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