United States v. Ervis Gjoni , 517 F. App'x 103 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3984
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UNITED STATES OF AMERICA
v.
ERVIS GJONI,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 2-11-cr-00182-001)
District Judge: Honorable Jose L. Linares
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Submitted Under Third Circuit LAR 34.1(a)
April 19, 2013
Before: AMBRO, HARDIMAN, and COWEN, Circuit Judges
(Opinion filed: April 19, 2013)
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OPINION
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AMBRO, Circuit Judge
Ervis Gjoni pled guilty to conspiracy to distribute methylenedioxy-
methamphetamine (MDMA), more commonly known as Ecstasy, in violation of 21
U.S.C. §§ 841(a)(1) and 846. He was sentenced to 36 months‟ imprisonment, a ten-
month downward variance from the bottom of the applicable Sentencing Guidelines
range of 46 to 57 months. Gjoni nonetheless challenges the reasonableness of his
sentence.1
We review sentences for both procedural and substantive unreasonableness,
applying an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). District courts must
follow a three-step sentencing process: (1) calculate the applicable Sentencing Guidelines
range; (2) formally rule on any departure motions; and (3) exercise their discretion by
considering the relevant 18 U.S.C. § 3553(a) factors. United States v. Gunter, 462 F.3d
237, 247 (3d Cir. 2006). “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 [D]istrict [C]ourt provided.‟” United
States v. Friedman, 658 F.3d 342, 360 (3d Cir. 2011) (quoting Tomko, 562 F.3d at 568).
There is no allegation of procedural unreasonableness in this case. The District
Court followed all three steps and considered Gjoni‟s age, employment, enrollment in
1
The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Gjoni also argues that
he should have been granted a downward departure under U.S.S.G § 5K2.20 because his
criminal behavior was “aberrant.” Unless the District Court committed legal error by
failing to understand its authority to grant a downward departure, “[w]e do not have
jurisdiction to review” its discretionary decision not to depart. United States v. Jones,
566 F.3d 353, 367 (3d Cir. 2009) (quotation omitted). Thus we dismiss this argument for
lack of appellate jurisdiction, but note that, if we had jurisdiction, we would have
affirmed the District Court. Gjoni engaged in multiple drug transactions over several
days, and the Court did not err by denying a departure that is available only when “the
defendant committed a single criminal occurrence or single criminal transaction that (1)
was committed without significant planning; [and] (2) was of limited duration.” U.S.S.G.
§ 5K2.20(b).
2
college, and limited criminal activities. In this context, we cannot conclude that Gjoni‟s
below-Guidelines sentence was substantively unreasonable, and thus affirm his sentence.
3