Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-27-2009
USA v. Marrero
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4161
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"USA v. Marrero" (2009). 2009 Decisions. Paper 1816.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4161
UNITED STATES OF AMERICA
v.
CHRISTOPHER MARRERO,
Appellant
On Appeal from the United States District Court
for the District of Delaware
D.C. Criminal No. 07-cr-0013-1
(Honorable Sue L. Robinson)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 26, 2009
Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.
(Filed: February 27, 2009)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Christopher Marrero pled guilty to two counts of wire fraud in violation of 18
U.S.C. § 1343, and one count of aggravated identity theft in violation of 18 U.S.C. §
1028A. He was sentenced to 41 months imprisonment for wire fraud, to be followed by a
24 month sentence for aggravated identity theft, served consecutively as required under
18 U.S.C. § 1028A. Marrero appeals his sentence, contending the district court
procedurally erred by treating the sentencing guidelines as mandatory.1 Sentencing law
has evolved rapidly in the last few years. “Apprendi, Booker, Rita, Gall, and Kimbrough
have given the lower courts a good deal to digest over a relatively short period.” Spears
v. United States, No. 08-5721, slip op. at 7 (U.S. Jan. 21, 2009), available at 2009 U.S.
LEXIS 864, at *11. In light of our uncertainty over whether the District Court’s decision
conforms to current sentencing law, specifically Gall v. United States, 128 S. Ct. 586
(Dec. 10, 2007), we will remand for resentencing.
I.
We review the sentence under an abuse-of-discretion standard. We must
ensure that the district court committed no 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.
Gall v. United States, 128 S.Ct. 586, 597 (2007).
II.
In Nelson v. United States, the Supreme Court held “the sentencing court must first
calculate the Guidelines range, and then consider what sentence is appropriate for the
1
We have jurisdiction under 28 U.S.C. §1291 and 18 U.S.C. § 3742(a)(1).
2
individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a),2
explaining any variance from the former with reference to the latter.” No. 08-5657, slip
op. at 2 (U.S. Jan. 26, 2009), available at 2009 U.S. LEXIS 872, at *2 (footnote added);
see also United States v. Gunter, 462 F.3d 237, 243 (3d Cir. 2006) (outlining a
substantially identical process for district courts to follow).
Here, the District Court stated:
I agree that the sentence suggested by the guideline range is
extraordinarily long, and if I were writing on a blank slate, I’m not
confident that I would come up with the same guideline ranges. But, of
course I’m not. Not only am I looking at the guideline range, but I’m
looking at the post-Booker new legal landscape imposed by the Third
Circuit. And in addition to that, I’m looking at this defendant’s sentence
vis-a-vis his [co-]defendants. So I’m not even able simply to take him, I
don’t believe, and separate his acts from everyone else’s.
Given all of that, I take no pleasure, but I am going to follow the
guideline range here. The range is so high based on the loss, and that’s
2
Under the statute, the relevant factors are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed – (A)
to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; (B) to afford adequate
deterrence to criminal conduct; (C) to protect the public from further crimes
of the defendant; and (D) to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in the
most effective manner; (3) the kinds of sentences available; (4) the kinds of
sentence and the sentencing range established for . . . the applicable
category of offense committed by the applicable category of defendant as
set forth in the guidelines. . . (5) any pertinent policy statement– (A) issued
by the Sentencing Commission . . . (6) the need to avoid unwarranted
sentence disparities among defendants with similar records who have been
found guilty of similar conduct; and (7) the need to provide restitution to
any victims of the offense.
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based on this defendant’s willingness to take money from his employer
illegally. And unfortunately, Congress has made the determination that this
sort of crime deserves harsh penalties. But at this point in time, based on
the landscape that I am dealing with, I am not going to vary or depart from
the guideline range.
JA-59-60.
It is possible the District Court correctly followed the process laid out in Nelson. It
did calculate the guidelines and “then consider[ed] what sentence is appropriate for the
individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a),
explaining any variance from the former with reference to the latter.” Nelson, No. 08-
5657, slip op. at 2.
But as a sister circuit has held, “Gall and Kimbrough represent the expansion of
the district court’s authority to vary from the guidelines . . . [having] wide latitude in
making individualized sentencing determinations.” United States v. Rodriguez, 527 F.3d
221, 225 (1st Cir. 2008); see Gall v. United States, 128 S. Ct. 586 (Dec. 10, 2007);
Kimbrough v. United States, 128 S.Ct. 558 (Dec. 10, 2007). And Kimbrough recognized
that “a categorical disagreement with and variance from the Guidelines is not suspect.”
Spears, No. 08-5721, slip op. at 4 (clarifying the Kimbrough holding with regards to the
crack cocaine ratio).
When confronted with a district court’s uncertainty in sentencing, the First Circuit
prescribed resentencing in light of subsequent Supreme Court decisions. Rodriguez
vacated the sentence because the “district court, acting without the benefit of the
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watershed decision in Kimbrough . . . [, did not] consider requests for variant sentences
premised on disagreements with the manner in which the sentencing guidelines operate.”
Id. at 231.
The District Court here also acted without the benefit of Gall and Kimbrough.
Due to the probability that the District Court believed itself unduly constrained by the
guidelines, we will vacate and remand so that the District Court may re-sentence Marrero.
Of course, we express no opinion as to what the sentence should be. Accordingly, we
will vacate the sentence and remand for resentencing in light of Gall v. United States, 128
S. Ct. 586 (2007).
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