NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2503
___________
UNITED STATES OF AMERICA
v.
MICHAEL LOWRY,
Appellant
_______________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Criminal No. 10-cr-00238-001
(Honorable Alan N. Bloch)
______________
Argued April 17, 2012
Before: SCIRICA, AMBRO and NYGAARD, Circuit Judges.
(Filed: May 10, 2012)
RENEE PIETROPAOLO, ESQUIRE (ARGUED)
Office of Federal Public Defender
1500 Liberty Center
1001 Liberty Avenue
Pittsburgh, Pennsylvania 15222
Attorney for Appellant
LAURA S. IRWIN, ESQUIRE (ARGUED)
REBECCA R. HAYWOOD, ESQUIRE
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, Pennsylvania 15219
Attorneys for Appellee
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Michael Lowry pleaded guilty to possession with intent to distribute heroin, 21
U.S.C. § 841(a)(1), (b)(1)(C). He was sentenced to 120 months’ imprisonment, which he
appeals. We will vacate and remand for resentencing.
I.
After an attempted drug sale to a police informant, Lowry was indicted for
possession with intent to distribute less than 100 grams of heroin in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C). He pleaded guilty to the offense.
The Presentence Investigation Report determined that, based on an offense level of
15 with six criminal history points, the range of imprisonment under the sentencing
guidelines was 24 to 30 months. Absent any objections, the District Court adopted the
report as accurate. The government filed a sentencing memorandum requesting an
upward variance to 72 months because Lowry’s criminal history category did not include
three convictions for juvenile drug trafficking or adequately consider Lowry’s continued
recidivism. The memorandum also alleged that Lowry had committed an uncharged
murder. Lowry responded by noting that the previous convictions were for small-time
dealing and possession, and submitted that, if the court wished to consider these
convictions, it could raise Lowry’s criminal history category to the next category rather
than doubling the recommended maximum sentence. Lowry also disputed the
2
government’s assertion that he had committed a murder and argued any consideration of
this factor in sentencing would violate his constitutional rights.
At the sentencing hearing, the District Court stated that it would not consider the
allegations of Lowry’s involvement in a murder in sentencing. It then sentenced Lowry
to 120 months’ imprisonment. In making this determination, the Court reasoned that the
Guidelines’ recommended range was insufficient because it failed to account for Lowry’s
three juvenile adjudications. It also noted that Lowry had served most of a three- to six-
year state sentence for a similar crime, and concluded that, “[i]f a six-year sentence did so
little to deter the Defendant’s criminal activities, a guidelines sentence in the range of 24
to 30 months would have little or no impact.” The Court determined that “a guideline
sentence would not adequately protect the public from the Defendant, provide any hope
for rehabilitation, or provide adequate deterrence,” and that a “a sentence substantially
higher is needed in this case.”
Lowry timely appealed. 1
II.
We review sentencing decisions in two stages. First, we determine whether the
sentencing court committed “significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including an
1
The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
explanation for any deviation from the Guidelines range.” United States v. Gall, 552
U.S. 38, 51 (2007). If we determine the district court committed procedural error, we
remand for re-sentencing. United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010).
But if the decision is procedurally reasonable, we proceed to review for substantive
reasonableness, affirming “unless no reasonable sentencing court would have imposed
the same sentence on that particular defendant for the reasons the district court provided.”
United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
The Supreme Court has made it “pellucidly clear that the familiar abuse-of-
discretion standard of review . . . applies to appellate review of sentencing decisions.”
Gall, 552 U.S. at 46. We do not presume a sentence outside the Guidelines range
unreasonable, although a “major departure should be supported by a more significant
justification than a minor one.” Id. at 50. The ultimate “[t]ouchstone of ‘reasonableness’
is whether the record as a whole reflects rational and meaningful consideration of the
factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571
(3d Cir. 2007) (en banc). In making this determination, we give “due deference” to the
district court’s determination that “the § 3553(a) factors, on a whole, justify the extent of
the variance.” Gall, 552 U.S. at 51. The mere “fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” Id.
Here, the sentence imposed by the District Court constituted a substantial upward
variance: it was 400% greater than the maximum that the District Court properly
calculated under the Guidelines and nearly double the sentence sought by the
4
government. Nonetheless, a substantial variance may be procedurally reasonable as long
as it is “accompanied by a thorough justification of the sentence, ‘including an
explanation for any deviation from the Guidelines.’” United States v. Negroni, 638 F.3d
434, 446 (3d Cir. 2011) (quoting Gall, 552 U.S. at 51).
The District Court recognized that it was imposing a sentence “substantially
higher” than that recommended under the Guidelines, and justified its decision by
reference to several of the § 3553(a) factors. Nevertheless, despite this thoughtful
analysis, the proffered explanation is insufficient to support the sentence, which we
conclude was procedurally unreasonable.
Most significantly, the District Court did not consider 18 U.S.C. § 3553(a)(6),
which requires courts to consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct.”
Although we fault defendant’s counsel for not raising the issue of disparity more clearly
(particularly in response to the government’s request for a sentence more than twice the
Guidelines’ recommended maximum), we believe that, under the totality of the
circumstances and in view of the advisability to provide a substantial explanation for a
substantial variance, 2 the issue was adequately raised to warrant consideration. The
District Court was not obligated to explicitly discuss this question as long as “the record
makes clear the court took the factors into account in sentencing.” United States v.
2
The issue of disparity was implicated by the defendant’s urging that he receive a
sentence within the guidelines, as well as his proposal to revise his criminal history
category to the next category, Category IV, rather than the substantial increase the
government sought.
5
Cooper, 437 F.3d 324, 329 (3d Cir. 2006). But here, where there is no suggestion in the
record that the District Court considered sentencing disparities, we cannot determine that
this standard was satisfied. See Merced, 603 F.3d at 224. We accordingly conclude that
the sentence was procedurally unreasonable and will remand for resentencing.
III.
For the foregoing reasons, we will vacate Lowry’s sentence and remand for
resentencing.
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USA v. Michael Lowry, No. 11-2503
NYGAARD, Circuit Judge, concurring.
I agree with the majority that Michael Lowry’s sentence should be vacated and
remanded to the District Court for resentencing. I, however, would do so for a different
reason because in my view, counsel at sentencing rendered Lowry ineffective assistance
by failing to properly object to the severity of his sentence.
The majority believes that counsel adequately raised the sentencing disparity,
obligating the District Court to address it. I do not. I agree that, where the district court
substantially varies from the Guidelines, it must provide a substantial explanation for
doing so. Nonetheless, it is counsel’s responsibility to identify deficiencies in the district
court’s reasoning so that—in addition to preserving the issue for appeal—the court has an
opportunity to augment its explanation or, perhaps, alter its decision. It is asking too
much of the District Court that it divine from vague references to the Guidelines that
counsel believes that the sentence is unreasonably disparate from others similarly
situated.
In my view, the glaring deficiency was with counsel’s failure to raise the
sentencing disparity at the sentencing hearing. Ineffective assistance of counsel claims
are generally not reached on direct appeal except, in those rare circumstances, where “the
record sufficiently establishes a basis for our review.” United States v. Theodoreopoulos,
866 F. 2d 587, 598 (3rd Cir. 1989) overruled on other grounds by United States v. Price,
76 F.3d 526, 528 (3d Cir. 1996); see also Government of Virgin Islands v. Zepp, 748 F.2d
125, 133 (3d Cir. 1984). This case fits within that narrow exception because there is no
need for further factual development here. It was incumbent upon counsel, knowing that
the Government was going to ask for a sentence in excess of 72 months, to come armed,
not only with an objection to the disparity of the sentence, but with exemplar evidence
sufficient to convince the District Court that the sentence is unreasonably disparate from
others similarly situated. I would remand on this basis.
1