NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-3394
______________
UNITED STATES OF AMERICA
v.
HAKIM HANDY,
Appellant
______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 4-17-cr-00310-001
Honorable Matthew W. Brann, District Judge
______________
Submitted under Third Circuit L.A.R. 34.1(a)
June 11, 2019
BEFORE: HARDIMAN, PORTER, and COWEN, Circuit Judges
(Filed: August 9, 2019)
______________
OPINION*
______________
COWEN, Circuit Judge.
____________________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Hakim Handy appeals from the criminal sentence entered by the United States
District Court for the Middle District of Pennsylvania. We will affirm.
I.
Handy entered a guilty plea to one count of conspiracy to distribute 28 grams or
more of crack cocaine and additional quantities of heroin in violation of 21 U.S.C. § 846.
The government agreed to recommend a three-level reduction for acceptance of
responsibility. The presentence investigation report (“PSR”) determined that Handy had
a criminal history score of 20 and was a career offender, resulting in a criminal history
category of VI. With a total offense level of 35, the PSR calculated an advisory
Sentencing Guidelines range of 292 to 365 months of imprisonment.
Although acknowledging that he was technically a career offender, Handy
objected on the ground that the designation overstated the extent of his prior record (as
well as on the ground that he was sentenced concurrently for two of the prior felony
convictions). He also asked for a departure based on his exceptional lack of support and
guidance when he was a youth as well as his history of early drug use. In his sentencing
memorandum, Handy requested a below-Guidelines sentence because of his criminal
history, family dynamics, and alleged unwarranted sentencing disparities.
At Handy’s sentencing hearing, the government agreed that he should receive a
third point for acceptance of responsibility. Handy’s counsel agreed to the withdrawal of
his “concurrent sentences” objection and that there were no other objections “that bear
directly upon the advisory guideline range calculation contained within that report.”
(A23-24.) The District Court accordingly determined that Handy “has a criminal history
2
category of six, an offense level of 34, an advisory guideline range of imprisonment then
of between 262 and 327 months.” (A24.) Defense counsel also acknowledged that
“there [were] no motions for departure.” (Id.) According to Handy’s attorney, “a
sentence below the guidelines would reflect the below average upbringing he had and the
possibility of changing that cycle [of crime], changing his daughter’s life for the better.”
(A33.)
The District Court ultimately imposed a sentence of 300 months of imprisonment
and eight years of supervised release.
II.
On appeal, Handy contests the District Court’s application of the career offender
designation and its imposition of a sentence above the low end of the advisory Guidelines
range.1 According to Handy, the District Court “erred in calculation of the advisory
guidelines” by sentencing him as a career offender and not allowing a downward
departure or variance on account of “the remoteness, pettiness, and non-violent nature of
the predicate offenses.” (Appellant’s Brief at 13.) Noting that the enhancement was
1
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231,
and this Court has appellate jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
We “review sentences for abuse of discretion, and review them for both procedural and
substantive reasonableness.” United States v. Grober, 624 F.3d 592, 599 (3d Cir. 2010)
(citing United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc)). A sentence
is procedurally unreasonable if, for instance, the district court improperly calculates the
Guidelines range, fails to consider the 18 U.S.C. § 3553(a) factors, relies on clearly
erroneous facts, or does not adequately explain the chosen sentence. See, e.g., id. “We
will affirm a procedurally sound sentence as substantively reasonable ‘unless no
reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided.’” Id. (quoting Tomko, 562 F.3d at
568).
3
designed to target high-level dealers with a record of federal drug trafficking offenses, he
argues that the District Court misapplied the law by indicating that there was a substantial
risk of re-offending even though “Mr. Handy falls into the category of twenty-seven
(27%) percent chance of re-offending according to the Sentencing Commission.” (Id. at
14.) Handy contends that, even if his sentencing did not implicate a mixed issue of law
and fact, a reasonable court would have either refused to apply the career offender
designation or departed to a more appropriate sentencing range of 151 to 188 months’
incarceration. Pointing to his family history, the birth of his daughter, the remoteness and
timing of his prior drug convictions, and the allegedly disparate treatment of his co-
conspirators (e.g., “[Ms. Smith] received a time-served county sentence of nine (9)
months” while “Ms. Smith’s brother was never charged for his involvement” (id. at 16)),
Handy argues that “[t]he District Court abused its discretion by not sentencing Mr. Handy
to the lowest level of the advisory guideline range in light of the sentencing factors set
forth in 18 U.S.C. § 3553(a)” (id. at 9).
The District Court did not commit any reversible error in sentencing Handy. On
the contrary, its sentence was neither procedurally nor substantively unreasonable.
Handy admits that he “satisfies the prior drug conviction requirements to make him a
career offender.” (Id. at 11.) In fact, the District Court recognized that “[t]his is your
seventh drug-related conviction.” (A35.) Furthermore, “[y]ou’ve committed crimes
while on supervision for other convictions.” (Id.) Specifically, Handy had, inter alia,
Pennsylvania convictions “for Possession of Cocaine and Delivery of Cocaine,
Possession with Intent to Deliver Cocaine in three (3) separate incidents in 2004;
4
Delivery of Cocaine in 2005 and Receiving Stolen Property in 2008, Possession of a
Controlled Substance and Fleeing and Eluding Police in 2011; [and] False Identification
to Law Enforcement in 2016.” (Appellant’s Brief at 7-8.) The District Court
appropriately noted that his time in county jail and the two years he spent in state prison
“didn’t seem to improve things.” (A36.) “While you suggest that you endured a lack of
support and guidance in early drug use as a youth, I want to make it clear that I don’t
believe that you are simply a misguided youth at this point in your life [as a man in his
mid-thirties].” (A35 (further noting that fact that past 30 months of incarceration took
him away from his young daughter “does not cleanse the record before me as a I see
it.”).) The District Court also properly considered the seriousness of the offense (e.g.,
“50 grams of cocaine were found in a room where two children under the age of 15 were
located” (A35)) and the need to avoid unwarranted sentencing disparities.
III.
For the foregoing reasons, we will affirm the sentence entered by the District
Court.
5