United States v. Eddie Walker

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________

Nos. 11-2727, 11-2845, 11-3087, and 11-3088
__________

UNITED STATES OF AMERICA

v.

EDDIE LEE WALKER, a/k/a MO, a/k/a MIKE

Eddie Lee Walker,
Appellant at No. 11-2727
_____________

UNITED STATES OF AMERICA

v.

BRENT LAMAR HULL,
Appellant at No. 11-2845
_____________

UNITED STATES OF AMERICA

v.

CLYDE THOMAS HULL, a/k/a CLYDE HALL, a/k/a MS BANKS

Clyde Thomas Hull,
Appellant at No. 11-3087
_____________

UNITED STATES OF AMERICA

v.

MATHIS MCMICKLE, a/k/a MATHIS AVERY, a/k/a C/O MAC
 Mathis McMickle,
Appellant at No. 11-3088
__________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 2-07-cr-00038-002, 2-07-cr-00038-015,
2-07-cr-00038-016, and 2-07-cr-00038-018)
District Judge: Honorable Michael M. Baylson

Submitted Under Third Circuit LAR 34.1(a)
APRIL 26, 2013

BEFORE: JORDAN, GREENBERG, and NYGAARD, Circuit Judges

(Filed: June 26, 2013)

__________

OPINION OF THE COURT
__________

NYGAARD, Circuit Judge.

I.

The Cut-Off drug organization operated within the Highland Gardens housing

development in Chester, Pennsylvania from 2003 until 2009. The organization allegedly

distributed more than five kilos of cocaine during that time period. As members of the

Cut-Off drug organization, Appellants Eddie Lee Walker, Brent Hull, Clyde Hull and

Mathis McMickle were charged together in a superseding indictment which alleged

conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846, and

individually or together in more than thirty other drug-related substantive offenses. They

were tried together before a jury in the Eastern District of Pennsylvania. All of the

2
Appellants were acquitted of the conspiracy charge, but found guilty on the applicable

substantive charges.

We consolidated the Appellants‘ individual appeals for disposition. Appellants

challenge the sufficiency of the evidence used to convict them, the reasonableness of

their sentences and various other issues. As discussed in more detail below, we find no

merit in any of their arguments. Accordingly, we will affirm the criminal judgments

entered against all Appellants.

II.

Having consolidated the appeals of these four Appellants, we review the issues

raised by each of them individually.

A. Appellant Eddie Lee Walker.

Appellant Walker, identified by the indictment as the leader of the Cut-Off

organization, was charged with, among other crimes, distribution and possession with

intent to distribute cocaine base within one thousand feet of a playground, a violation of

21 U.S.C. § 860(a). Prior to trial, Walker moved to dismiss these charges, but the District

Court denied the motion.

On appeal, Walker argues that there was insufficient evidence to convict him on

any of the counts relating to the playground. Before we consider the merits of his claims,

we need to take up the issue of Walker‘s preservation of these issues and our standard of

review. The Government contends that Walker‘s motion made pursuant to FED. R. CRIM.

P. 29(a) was particularly vague and, as such, did not preserve the playground issue for

appeal. We disagree. Walker‘s counsel made his Rule 29(a) motion at the close of the

3
Government‘s case and did not renew that motion at the close of all of the evidence.

While defense counsel‘s oral motion (―On behalf of Mr. Walker, I‘d move for Rule 29 on

all counts‖) was not specific, we find it sufficient to preserve the challenge Walker now

raises.

Rule 29 only requires that a defendant ―move for judgment of acquittal, or renew

such motion within seven days after a guilty verdict.‖ FED. R. CRIM. P. 29(c)(1). The

Rule does not indicate that a defendant‘s motion must be specific. Indeed, in most

circuits, the rule is that a general challenge to the adequacy of the evidence preserves for

de novo review ―the full range of challenges, whether stated or unstated.‖ United States

v. Hammoude, 51 F.3d 288, 291 (D.C. Cir.), cert. denied, 515 U.S. 1128 (1995). Indeed,

the District Court in this case acknowledged as much. In following-up on the Rule 29

motion, the District Court indicated to Walker‘s counsel that ―. . . today‘s not the day for

argument but, I . . . if you want to state the grounds for your [Rule 29] motion, you may

do so. I‘m not saying you have to . . . to preserve your client‘s rights in the event there‘s

a conviction.‖1 We recognize that while the law requires counsel to make specific

objections to evidence or instructions, the practice of allowing general Rule 29 objections

is now well accepted. See United States v. Marston, 694 F.3d 131, 135 (1st Cir. 2012).

Walker‘s challenge to the sufficiency of the evidence used to convict him of the

1
The District Court‘s subsequent exchange with Walker‘s counsel further indicates the
Court‘s understanding that counsel‘s challenge was a general one and that he had
preserved the sufficiency issues, as well as others, for appeal. We note the following
exchange between defense counsel and the District Court: ―I appreciate that sir, but I do
believe that I am legally preserved and have not waived anything by making the motion
yesterday.‖ ―Ok. No. I‘m sure you didn‘t waive anything.‖ Supp. App. at 3115.
4
playground counts was preserved. We will therefore apply a de novo review to the denial

of his Rule 29 motion. United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006).

When we review a jury verdict for sufficiency of the evidence, we consider the

evidence in the light most favorable to the Government and affirm the judgment if there

is substantial evidence from which any rational trier of fact could find guilt beyond a

reasonable doubt. United States v. Benjamin, 711 F.3d 371, 376 (3d Cir. 2013). 21

U.S.C. §§ 841(a) & 860(a) proscribe distributing or possessing with intent to distribute

controlled substances within 1000 feet of a ―playground.‖ Similarly, §§ 856(a)(1) &

860(a) proscribe maintaining a place within 1000 feet of a ―playground‖ for the purpose

of distributing controlled substances. Subsection 860(e)(1) defines ―playground‖ as an

outdoor public facility ―containing three or more separate apparatus intended for the

recreation of children including, but not limited to, sliding boards, swing sets, and

teeterboards.‖

The parties stipulated that Walker possessed and distributed cocaine base on the

charged dates within 1000 feet of the Highland Gardens location. Walker and the

Government agreed to leave the question of whether or not this location constituted a

playground within the meaning of 21 U.S.C. § 860(e) to the jury. The jury determined

that Highland Gardens was a playground within the meaning of the statute.

On appeal, Walker does not directly challenge the jury‘s determination. Instead,

he indirectly attacks the finding by arguing that the testimony offered by the Government

did not establish that the playground was in existence on the dates he allegedly

distributed cocaine base. Walker labels the relevant testimony ―too uncertain and vague.‖

5
As to the possession counts, Walker argues that the record fails to prove that the

playground equipment was present when the Government took pictures of the location.

We disagree on both counts. The record contains ample evidence to establish the

existence of the playground at the time of the charged offenses and at the time the

Government took the photographs.

The Government introduced photographs of the Highland Gardens playground

which clearly show the existence of qualifying recreational equipment. These

photographs were backed-up by the testimony of a co-defendant, James Jones, who

indicated that when Walker taught him how to cook cocaine base, he could see the

playground through Walker‘s kitchen window. This is the same view depicted in

Government Exhibit 62, above. Jones further testified that Walker‘s distribution of

cocaine base continued up and until the time he was arrested.

6
 Further, Special Agent Randy Updegraff testified that cocaine base was first sold

in the area of the Highland Gardens playground in 2007 and that Walker ―left the area‖

sometime in December of 2008. Police corporal John Gretsky also identified

Government Exhibit 63, below, as a photograph that was a ―fair and accurate

representation of that playground prior to it being torn down in August or September of

2008.‖ The testimony of Pennsylvania State Trooper John Cargan further supported the

existence of the playground at the time of the charged offenses. Trooper Cargan had not

only seen children using the playground during the time of Walker‘s drug activities, but

also testified that it was located directly behind Walker‘s residence and that it existed as

depicted in the photographs as recently as seven days prior to Walker‘s arrest. Lastly, a

Chester Police lieutenant testified that the playground was in existence on July 17, 2007

7
when he recovered more than fifteen grams of cocaine base that was in Walker‘s

possession from Walker‘s house.

We find ample evidence, given this testimony, for the jury to reasonably infer that

the Highland Gardens playground was in existence at the time of the charged playground

distribution and possession offenses. We will affirm Walker‘s conviction. He does not

challenge his sentence.

B. Appellant Brent Lamar Hull

Appellant Brent Hull was a street-level drug dealer who got his product from

Walker. He raises several issues on appeal, and we will begin with his suppression

claims. Incident to his arrest, the Government seized 147.8 grams of cocaine base. Hull

sought to suppress this evidence before trial, arguing that two separate seizures of the

cocaine base violated his Fourth Amendment rights. The District Court held an

evidentiary hearing, at which the seizing officer, Trooper Cargan, testified. Trooper

Cargan‘s testimony, which the District Court found credible, can be quickly summarized.

Trooper Cargan went to Brent Hull‘s residence to execute an arrest warrant. After

knocking and hearing sounds inside, Cargan and accompanying officers forcibly entered

the house. A naked female was apprehended and temporarily detained on the house‘s

first floor. Hull was located on the house‘s second floor, clad only in boxer shorts. Once

the house was secure and Hull was handcuffed, Trooper Cargan permitted Hull to get

dressed. Hull asked for a particular pair of pants, which the officers located and searched

prior to giving them to Hull. Inside one of the pockets, officers discovered a plastic bag

containing a quantity of cocaine base. Hull was dressed while handcuffed and taken

8
downstairs. Trooper Cargan then asked Hull for some identification. In response, Hull

pointed to a purse, which Cargan subsequently inspected. Inside the purse, the trooper

not only found Hull‘s identification, but another plastic bag containing cocaine base.

Cargan testified that Hull admitted ownership of the drugs. The District Court refused to

suppress the evidence, finding Hull to have impliedly consented to the search of the

purse.

On appeal, Hull does not challenge the search of his pants pocket, limiting his

argument to the drugs discovered in the purse. He argues that he never consented to the

search of the purse, but instead only acquiesced to Trooper Cargan‘s claim of lawful

authority. Hull also submits that since Trooper Cargan knew his identity, there were no

exigencies or other circumstances that would have excused the absence of a warrant to

search the purse. We exercise plenary review over a district court‘s application of the

law to the facts when it denies a motion to suppress, reviewing its factual determinations

only for clear error. See United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). We

reject Hull‘s arguments, and hold that the search of the purse did not violate the Fourth

Amendment.

The Fourth Amendment protects individuals from unreasonable searches and

seizures. Maryland v. Buie, 494 U.S. 325, 331 (1990). Generally, the search of an

individual‘s home or property absent a search warrant is unreasonable and violates the

Fourth Amendment. Id. However, ―a search conducted pursuant to consent is one of the

specifically established exceptions to the warrant requirement.‖ United States v. Givan,

320 F.3d 452, 459 (3d Cir. 2003). A court is to measure the scope of a suspect‘s consent

9
using an objective standard to determine what a reasonable person would have

understood from the exchange between the officer and the defendant. Florida v. Jimeno,

500 U.S. 248, 251 (1991). In United States ex rel. Harris v. Hendricks, 423 F.2d 1096

(3d Cir. 1970), we set forth the critical factors to be considered in a totality of the

circumstances inquiry. These included the setting in which the consent was obtained, the

parties‘ verbal and non-verbal actions, and the age, intelligence, and educational

background of the consenting individual. See id. at 1099. When we consider the totality

of the circumstances as adduced at Hull‘s suppression hearing, we agree with the District

Court‘s determination that Hull impliedly consented to the search of the purse.

Hull argues that he never specifically consented to the officers‘ search of the

purse. That is not determinative. An implied consent to search would be no less valid.

See, e.g., United States v. Patten, 183 F.3d 1190, 1192–95 (10th Cir. 1999) (holding that

consent to search was valid where the officer repeatedly asked the defendant to open his

suitcase and in response the defendant did so gradually); United States v. Gordon, 173

F.3d 761, 766 (10th Cir. 1999) (―When [the officer] encountered the locked bag, she

asked [the defendant], ‗Can you open that?‘ [The defendant] apparently did not respond

verbally but removed the key from his pocket and handed it to [the officer].‖ (citation

omitted)). That is to say, if Hull said or did something that permitted the officers to form

a reasonable belief that Hull was authorizing them to search the purse, then Hull may be

deemed to have impliedly consented to that particular search. See, e.g., United States v.

Guerrero, 472 F.3d 784, 789–90 (10th Cir. 2007) (―Consent may instead be granted

through gestures or other indications of acquiescence, so long as they are sufficiently

10
comprehensible to a reasonable officer.‖); accord United States v. Sanchez, 156 F.3d 875,

878 (8th Cir. 1998) (―[W]hether or not the suspect has actually consented to a search, the

Fourth Amendment requires only that the police reasonably believe the search to be

consensual.‖).

There can be no doubt that Hull‘s actions at the time of his arrest could have been

reasonably interpreted by the officers as communicating his consent to their search of the

purse. After securing the residence‘s second floor and detaining Hull, Trooper Cargan

asked Hull for identification. Hull responded that it was downstairs. Upon returning

downstairs, the trooper again asked Hull for identification. Hull indicated a bag, which

Trooper Cargan described as a ―woman‘s purse.‖ Trooper Cargan approached the bag

and again asked Hull, ―this bag?‖ Hull nodded in agreement and then verbally

responded, ―Yes.‖ We admit some question exists on this record as to the ownership of

the bag/purse. But ultimately, that does not matter. Hull consistently refers to the bag as

his in his brief and did not disclaim ownership of the bag in the District Court. The

Government, in its brief, labels the purse as belonging to Hull‘s girlfriend, and later,

confusingly claims the District Court determined the purse belonged to Hull‘s girlfriend.

The District Court made no such findings. It merely recounted, without any further

comment, an alternative position the Government advanced at trial: ―The government, in

justifying these seizures, asserts that . . . the seizure from the purse is justified evidence

recovered from the property of a third party in which Defendant had no reasonable

expectation of privacy . . . .‖ This statement is not a holding of the District Court.

11
 This confusion does, however, focus our attention on the question of ownership.

Ownership of the purse is important because typically one cannot consent to a search of

something one does not own. Men, typically, do not carry purses, especially those

identified as ―female‖ type bags.2 The woman in the room at the time of the search made

no comment on the record about this bag. She neither asserted her ownership of the bag,

nor denied the police permission to search it. We also note the trooper‘s initial confusion

when Hull directed him to a woman‘s purse; ―this bag?‖ he questioned Hull (emphasis

added). The ambiguity of ownership of this purse, however, is not fatal to the

constitutionality of the search. Hull, in this instance, had apparent authority to consent to

a search of the purse. The apparent-authority doctrine excuses otherwise impermissible

searches where the officers conducting the search ―reasonably (though erroneously)

believe that the person who has consented‖ to the search had the authority to do so.

Illinois v. Rodriguez, 497 U.S. 177, 186 (1990); Bolden v. Se. Pa. Transp. Auth., 953 F.2d

807, 828 n.29 (3d Cir. 1991). The Court of Appeals for the Sixth Circuit has discussed

this doctrine in detail:

When one person consents to a search of property owned by
another, the consent is valid if the facts available to the
officer at the moment . . . warrant a man of reasonable caution

2
Interestingly, this general statement may no longer be a certainty. The Urban
Dictionary, for example, now contains the following definition entry for a murse: ―a
man-purse. Very fashion-forward right now, seen on many hipster guys. The line
between a messenger bag and murse is very fluid - typically a murse is a bit smaller than
a traditional messenger, and may have a slightly more stylized look to it. A murse can
also be used to carry a laptop computer - one of the reasons it is so popular right now.‖
See Urban Dictionary: murse. Urban Dictionary. N.p., n.d. Web. 09 May 2013. The
record here contains no actual description of the purse beyond the trooper‘s agreement
with defense counsel that it was ―clearly, by appearance, a woman‘s purse or handbag.‖
12
 [to believe] that the consenting party had authority over the
premises. Whether the facts presented at the time of the
search would warrant a man of reasonable caution to believe
the third party has common authority over the property
depends upon all of the surrounding circumstances.

United States v. Waller, 426 F.3d 838, 846 (6th Cir. 2005). Moreover, ―[t]he government

bears the burden of establishing the effectiveness of a third party‘s consent.‖ Id. at 845

(citing Rodriguez, 497 U.S. at 181).

In this case, the search of the purse is constitutional because Trooper Cargan

could have reasonably believed that Hull had the apparent authority to give consent to

search the purse. It was found in his home, and therefore, could have been his property.

Hull himself specifically directed officers to the purse when they asked for his

identification. Even when Trooper Cargan expressed some confusion, asking Hull, ―this

bag?‖ Hull continued to point them in the direction of the purse. Thus, because Hull

exhibited apparent authority over the purse, and because his conduct constituted legally

sufficient consent for Trooper Cargan to search the purse, the search was valid under the

Fourth Amendment.

Next, Hull argues that his statements made during the search of the purse, in which

he admits to ownership of the cocaine base, should have been excluded because he was in

custody at the time he uttered them and had not been read his Miranda warnings. See

Miranda v. Arizona, 384 U.S. 436 (1966). Again, we review the District Court‘s denial

of a motion to suppress for clear error on the underlying factual determinations, and we

exercise plenary review over the District Court‘s application of the law to those facts.

Perez, 280 F.3d at 336.

13
 Upon searching the purse for his identification, Trooper Cargan discovered a

quantity of cocaine base. Trooper Cargan testified that Hull voluntarily and without

prompting stated his ownership of the drugs. The Government does not deny that Hull

was in custody at the time he made his statements, but insists that Miranda does not

apply here because Hull was not being interrogated. We agree. Miranda warnings are

required only when a suspect is both in custody and subject to interrogation. Alston v.

Redman, 34 F.3d 1237, 1246–47 (3d Cir. 1994). Hull‘s statements were volunteered;

they were not given in response to questioning. At the suppression hearing, Trooper

Cargan testified that when he pulled the drugs from the purse, Hull noticed them and

immediately and voluntarily stated that they were his. Under those circumstances, no

Miranda violation occurred.

Finally, Hull challenges the sufficiency of the evidence produced by the

Government to support the jury‘s finding that he possessed the cocaine base recovered

from his house when he was arrested---Count 64 of the indictment. ―[A] claim of

insufficiency of the evidence places a very heavy burden on an appellant.‖ United States

v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (internal quotation marks omitted). ―We apply

a particularly deferential standard of review to challenges to the sufficiency of the

evidence supporting conviction.‖ United States v. Powell, 693 F.3d 398, 401 n.6 (3d Cir.

2012) (internal quotation marks omitted). ―We view all evidence in the light most

favorable to the government, and sustain conviction as long as any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.‖ Id.

(internal quotation marks omitted).

14
 There is ample evidence on this record to support Hull‘s conviction at Count 64.

As we have reported above, Trooper John Cargan testified to serving an arrest warrant at

Hull‘s residence. When he entered the residence, he discovered Hull coming out of an

upstairs bedroom. Hull was placed under arrest and handcuffed. In plain view, Trooper

Cargan noticed a digital scale, plastic bags typically used for drug packaging, and

marijuana. Trooper Cargan discovered more drugs in the pocket of a pair of pants

belonging to Hull, as well as another quantity of drugs in a purse containing Hull‘s

identification, drugs which Hull himself admitted owning. Further, an agent of the Drug

Enforcement Agency testified to the quantity of cocaine base that Trooper Cargan

recovered and offered his opinion that the quantity of cocaine base, taken together with

the other items observed in Hull‘s bedroom were consistent with an intention to distribute

the drugs and not merely with possession for personal use.

Hull bases much of his sufficiency argument on perceived inconsistencies in

Trooper Cargan‘s testimony. The determination of witness credibility is the province of

the jury. See United States v. Brennan, 326 F.3d 176, 191 (3d Cir. 2003). After carefully

reviewing this record, we agree with the District Court that, while Trooper Cargan‘s

testimony contained minor inconsistencies—all of which were the subject of extensive

cross examination by Hull‘s defense counsel—the overall testimony was consistent with

the allegations stated in the indictment.3 We will, therefore, affirm Hull‘s conviction at

Count 64 because it is supported by sufficient evidence.

3
Hull‘s statement of the issues contains a statement that he challenges the sufficiency of
the evidence on his ―convictions,‖ but he makes no argument about these other counts.
15
 Hull also asks us to review his sentence. He argues that his sentence is both

procedurally and substantively unreasonable. We review the procedural and substantive

reasonableness of a district court‘s sentence for an abuse of discretion. Gall v. United

States, 552 U.S. 38, 51 (2007). We ―take up the procedural review first, looking to see

that the district court has committed no significant error....‖ United States v. Levinson,

543 F.3d 190, 195 (3d Cir. 2008). ―If the sentencing decision passes that first stage of

review, we then, at stage two, consider its substantive reasonableness.‖ Id. To avoid

procedural errors, we have instructed that a sentencing court must: (1) rule formally on

any departure motions; (2) state how any departure affects a defendant‘s advisory

Guidelines calculation (taking this Court‘s pre-Booker case law into account); and (3)

exercise discretion by separately considering the relevant § 3553(a) factors. United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). Hull argues that the District Court

failed to properly apply the third step of the sentencing procedure outlined in Gunter—

according to Hull, the sentencing court failed to give adequate consideration to each of

the § 3553(a) factors. Specifically, Hull insists the District Court failed to respond to his

argument that a twenty-year sentence would serve the same protective, rehabilitative, and

deterring effects as would a longer sentence. Hull also maintains that his sentence is

This would implicate a challenge to his convictions at Counts 4, 6, 7, 19-24 and 56.
However, Hull failed to argue the sufficiency of the evidence as to these other counts in
his brief, raising a challenge to Count 64 exclusively. Under FED. R. APP. P. 28(a)(5),
when an issue is presented in the statement of issues raised on appeal, but not in the
argument section of the brief ―the appellant has abandoned and waived that issue on
appeal.‖ Kiewit Eastern Co., Inc. v. L&R Constr. Co., Inc., 44 F.3d 1194, 1204 n. 30 (3d
Cir. 1995) (quoting Travitz v. Northeast Dep't ILGWU Health & Welfare Fund, 13 F.3d
704, 711 (3d Cir. 1994)). Therefore, any sufficiency arguments pertaining to these
additional counts are waived.
16
procedurally unreasonable because the District Court failed to take into consideration his

dysfunctional family life and childhood and that his status as a career offender overstated

his criminal history.

We reject these arguments, noting that a court need not address every argument

made at sentencing or every piece of evidence submitted, so long as the record is clear

that it took into account the § 3553(a) factors. See, e.g., United States v. Sevilla, 541 F.3d

226, 232 (3d Cir. 2008). The District Court adequately addressed the § 3553(a) factors

here. For example, the District Court stated at sentencing, ―[i]n applying the Sentencing

Factors under 3553, I find that this defendant, specifically, requires punishment for his

illegal conduct, which continued over a number of years and as [the Government] said,

virtually day in and day out, night after night, just taking over a neighborhood, and just

completely preventing it, and its law-abiding citizens, from just enjoying the day-to-day

affairs of life that most of us can enjoy.‖ The District Court continued, commenting on

the severity and continuity of Hulls‘ conduct, thus considering the nature and

circumstances of the offense. It considered Hull‘s history and characteristics, as well as

the deterrent effect of the sentence. The District Judge also addressed the impact of

Hull‘s crimes on the community as well as the need to protect society. This record

establishes that the District Court gave meaningful consideration to the § 3553(a) factors

in tailoring Hull‘s sentence and complied with its obligation under 18 U.S.C. § 3553(c) to

explain its reasons for imposing sentence. There is no basis for finding Hull‘s sentencing

procedurally unreasonable.

17
 If a sentence is not procedurally unreasonable, we proceed to the substantive-

reasonableness inquiry, which asks ―whether the final sentence, wherever it may lie

within the permissible statutory range, was premised upon appropriate and judicious

consideration of the relevant factors.‖ United States v. Doe, 617 F.3d 766, 770 (3d Cir.

2010). We apply a deferential standard, 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 substantive component of a reasonableness review requires the appellate

court to take into account the totality of the circumstances. United States v. Lychock, 578

F.3d 214, 217 (3d Cir. 2009). In examining the totality of the circumstances, we

determine whether any reasonable court could have imposed the same sentence as the

District Court. See id. at 219 n.2. Here, the District Court cited Hull‘s extensive criminal

history, observed that Hull was a career criminal who has never worked at an ―honest‖

job, and noted that Hull was a ―committed drug dealer‖ who was highly likely to return to

drug dealing. The District Court found that a term within the Guidelines range would

best satisfy the goals of sentencing, and sentenced Hull to the bottom of that range. The

District Court acknowledged that it had given thoughtful consideration to Hull‘s

arguments for a lesser sentence, but nevertheless concluded that a sentence within the

Guidelines range was appropriate. The sentence imposed was well within the District

Court‘s broad discretion, and we find that a reasonable court could have rendered the

same sentence. We have emphasized that sentences falling within the advisory

Guidelines range are more likely to be reasonable than those falling outside of that range.

18
See United States v. Olfano, 503 F.3d 240, 244–45 (3d Cir. 2007). Therefore, the

sentence imposed here was not substantively unreasonable and there is no abuse of

discretion. We will affirm Hull‘s sentence.

3. Appellant Clyde Hull

Section 2D1.1(b)(1) of the Guidelines provides for a two-level enhancement if the

defendant possessed a dangerous weapon ―unless it is clearly improbable that the weapon

was connected with the offense.‖ U.S.S.G. § 2D1.1 cmt. n.3. Note (3) of the

Commentary to § 2D1.1(b)(1) explains that ―[t]he enhancement for weapon possession . .

. reflects the increased danger of violence when drug traffickers possess weapons.‖

―[D]efendants have rarely been able to overcome the ‗clearly improbable‘ hurdle.‖

United States v. Drozdowski, 313 F.3d 819, 822 (3d Cir. 2002). The District Court

applied this enhancement to Appellant Clyde Hull‘s sentence. A street-level dealer and

brother of Appellant Brent Hull, Clyde Hull argues that the enhancement is inapplicable

to him because he was charged with a gun offense and that there was no confirmation that

the jury believed the testimony that guns were routinely available to him. He also argues

that the enhancement would only apply had he been convicted of the conspiracy count,

which he was not. He contends that there is no evidence that he had a gun on him or

even had access to a gun during any of the three offenses of his conviction. We disagree

and find ample testimony in the record to prove Hull‘s access to guns. For example,

several of Hull‘s co-defendants testified that he had access to guns. One co-defendant,

Craig Evans, testified to seeing Hull with a firearm. The testimony of these co-

defendants backs-up the testimony of several City of Chester police officers who testified

19
to removing numerous firearms from various areas in and around the Cut-Off. Lastly,

and most on point, is the testimony of Brenda Scott, a drug abuser and customer of

Hull‘s, who testified for the Government. Scott offered direct testimony that, in an

attempt to resolve a dispute between her and Hull, Hull obtained a gun and threatened her

with it. In the aggregate, this testimony provided the District Court a sound basis for its

determination that firearms were readily accessible to Hull and for enhancing his

sentence accordingly.

Hull also challenges the reasonableness of his sentence. We recently explained

that,

[o]ur review of a criminal sentence ... proceeds in two stages.
First, we review for procedural error at any sentencing step,
including, for example, failing to make a correct computation
of the Guidelines range at step one, failing to rely on
appropriate bases for departure at step two, or failing to give
meaningful consideration to the § 3553(a) factors at step
three.‖ United States v. Wright, 642 F.3d 148, 152 (3d Cir.
2011) (internal citations and quotations omitted). ―If there is
no procedural error, the second stage of our review is for
substantive unreasonableness, and we will affirm the sentence
unless no reasonable sentencing court would have imposed
the same sentence on that particular defendant for the reasons
the district court provided.‖ Id. [citations omitted].

United States v. Fumo, 655 F.3d 288, 308 (3d Cir. 2011).

We begin with procedural error. Hull maintains that the District Court committed

procedural error by imposing an upward variance when it meant to impose an upward

departure. He also argues that this upward departure was incorrectly calculated. As the

Government points out, the crux of Hull‘s argument here is that if the District Court had

granted the Government‘s request for an upward departure, Hull‘s Sentencing Guideline

20
range would have increased to 51-63 months from 57-71 months, which is below the 90-

months ultimately imposed. We see no procedural error in the District Court‘s sentence

and will affirm.

At step one, the District Court calculated Hull‘s Guideline range to be 51-63

months. At step two, it denied the Government‘s request for a 2-level upward departure.

At step three, it considered a sentence outside the Guideline‘s range. Upon a motion by

the Government, the District Court granted an upward variance from the Guidelines.

Contrary to Hull‘s arguments, the record could not be clearer. The District Court

explained its reasons for varying upward, including Hull‘s lengthy criminal record, his

criminal activities, defense counsel‘s unpersuasive suggestion that Hull had been

rehabilitated, and Hull‘s threats to murder a witness.4 We find no procedural error in

Hull‘s sentence.

Hull also challenges the substantive reasonableness of his sentence. When

reviewing for substantive reasonableness, we must consider the totality of the

circumstances and whether the sentence ―falls within the broad range of possible

sentences that [could] be considered reasonable.‖ United States v. Wise, 515 F.3d 207,

218 (3d Cir. 2008). Our review for substantive reasonableness, however, is highly

deferential, and we will affirm ―unless no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the reasons the district court

4
On this last point, Hull argues the District Court erred by giving inappropriate weight to
his threat to kill a government witness, Craig Evans. Despite Hull‘s argument that he
was merely ―blowing steam,‖ Hull does not deny threatening to kill Evans if he returned
to the Cut-Off neighborhood. The District Court committed no procedural error in
considering Hull‘s statement when assessing his character and history.
21
provided.‖ Doe, 617 F.3d at 770 (quoting Tomko, 562 F.3d at 568). The party

challenging the sentence has the burden of demonstrating the sentence's

unreasonableness. United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007).

Suggesting a sentence of up to 63 months as appropriately long enough for his

personal rehabilitation, Hull argues that the District Court‘s longer sentence of 90 months

was substantively unreasonable. Rejecting Hull‘s claim that he had changed his ways,

the District Court concluded that an above–Guidelines sentence would better serve Hull‘s

chances for rehabilitation. The Court noted that Hull was a ―recidivist,‖ and that a

―significant period of incarceration‖ was necessary. Our review of the District Court's

discussion at the sentencing hearing leaves us with the clear impression that Hull‘s

sentence ―was premised upon appropriate and judicious consideration of the relevant

factors.‖ Doe, 617 F.3d at 770. Accordingly, we cannot conclude that ―no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.‖ Tomko, 562 F.3d at 568. We will affirm Hull‘s

sentence.

4. Appellant Mathis McMickle

Representing himself, Appellant Mathis McMickle challenges both his conviction

and sentence. The arguments contained in McMickle‘s filings on appeal are difficult to

discern.5 Because McMickle is proceeding pro se, we construe his brief liberally, and

5
For example, McMickle has filed a document entitled ―Memorandum in Support of
Writ of Habeas Corpus.‖ We, however, will not treat this filing as a habeas petition and
will treat it as a supplemental pro se brief. To the extent McMickle tries to raise claims
such as to the ineffectiveness of his trial counsel, we do not consider such claims on
22
will address even those arguments that he has not developed in great detail. See, e.g.,

United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007). McMickle challenges the

sufficiency of the evidence used to convict him at Count 60 of the indictment, and

challenges the reasonableness of his sentence. We will affirm both his conviction and his

sentence.

McMickle was charged with a violation of 21 U.S.C. § 856(a)(1), which

proscribes the knowing use or maintenance of a place (McMickle‘s home) for the

purpose of unlawfully distributing and using cocaine in violation of 21 U.S.C. §

856(a)(1). Witness testimony revealed that McMickle‘s residence was used to

manufacture cocaine base as well as to package such drugs for sale. Testimony also

placed McMickle in his residence helping to manufacture drugs and selling drugs to

numerous customers. This testimony was not only corroborated by law enforcement

officers, but also by several of McMickle‘s co-defendants. McMickle argues that he was

an addict who sometimes manufactured cocaine base in his residence but that he did not

maintain the residence for the manufacture of drugs. True enough, according to the

record, McMickle was a known addict and often performed menial jobs to get money for

drugs. This testimony, however, is not inconsistent with the testimony of Government

witnesses that McMickle allowed his residence to be used for drug manufacturing. He

permitted both the manufacture and distribution of drugs from his residence, and there

direct appeal. See, e.g., United States v. Hankerson, 496 F.3d 303, 310 (3d Cir. 2007);
United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir. 2003).
23
was ample testimonial evidence in the record to support the jury‘s conviction. We will,

therefore, affirm McMickle‘s conviction.6

McMickle also challenges his sentence. We can find no basis to conclude that the

District Court abused its discretion in sentencing him. With respect to procedural

reasonableness, the District Court engaged in the three-step sentencing analysis we

established in Gunter, 462 F.3d at 247. Furthermore, it followed the procedures

announced in Gall, 552 U.S. at 50–51, by giving meaningful consideration to the

pertinent sentencing factors embodied in 18 U.S.C. § 3553(a). While the District Court

need not state all of the § 3553(a) factors, United States v. Charles, 467 F.3d 828, 831 (3d

Cir. 2006), it did comment on the nature and circumstances of the offense, McMickle‘s

history and characteristics and the need to protect the public from any further crimes he

may commit. The District Court also found troubling the fact that McMickle was on

parole while committing these new offenses. We find no procedural flaw in McMickle‘s

sentence.

If a sentence is procedurally sound, it is also considered substantively reasonable

―unless no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided.‖ Tomko, 562 F.3d at 568.

Because a sentence within the Guideline range may be presumed reasonable, see Rita v.

6
To the extent that McMickle argues that government witnesses were not credible, we
dismiss that challenge as meritless. ―Credibility determinations are the unique province
of a fact finder,‖ and ―it is not for an appellate court to set [them] aside.‖ United States v.
Kole, 164 F.3d 164, 177 (3d Cir. 1998). McMickle also raises a claim in passing near the
conclusion of his brief that he was prejudiced by including him in the conspiracy charge.
We see no such prejudice on this record.
24
United States, 551 U.S. 338, 347 (2007), it is exceedingly difficult for a defendant to

demonstrate that the benefit given by a below Guideline range sentence is unreasonable.

See United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006) (―[A] within-Guidelines

range sentence is more likely to be reasonable than one that lies outside the advisory

Guidelines range.‖). McMickle‘s sentence was actually below the Guidelines range.

McMickle‘s sentence was, therefore, substantively reasonable and we will affirm the

District Court.

III.

In conclusion, we will affirm the judgments of conviction and sentence entered

against all Appellants by the District Court.

25