United States v. Thomas Winebarger , 516 F. App'x 165 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2877
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UNITED STATES OF AMERICA
v.
THOMAS DAVID WINEBARGER,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. Action No. 09-cr-00279-1)
District Judge: Honorable Richard P. Conaboy
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Submitted Under Third Circuit LAR 34.1(a)
March 18, 2013
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Before: SMITH, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges.
(Opinion Filed: March 19, 2013)
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OPINION
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GREENAWAY, JR., Circuit Judge.
Thomas David Winebarger (“Winebarger”) challenges the sentence imposed by
the District Court, arguing that the District Court erred by failing to apply the factors set
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forth in 18 U.S.C. § 3553(a).1 Since, as we explained in United States v. Winebarger,
664 F.3d 388, 389 (3d Cir. 2011), the District Court could not consider the § 3553(a)
factors in connection with the Government‟s motion filed pursuant to 18 U.S.C.
§ 3553(e),2 we conclude that the District Court did not abuse its discretion and will affirm
Winebarger‟s judgment of conviction.
I. Background
The facts underlying this case were set forth in detail in our prior opinion, which
vacated Winebarger‟s sentence and remanded the case. Winebarger, 664 F.3d at 390-92.
We need not repeat them here.
On remand, the District Court resentenced Winebarger. During the resentencing
hearing, the Government provided support for its § 3553(e) motion. Defense counsel
then argued that, in addition to those points, the Court should consider the § 3553(a)
factors, which counsel then discussed in detail.
After concluding that it could not consider the § 3553(a) factors based on our
decision, the District Court accepted the Government‟s recommendation and imposed a
sentence of 135 months, well below the statutory mandatory minimum of 180 months.
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Section 3553(a) sets forth various factors that district courts should consider
when imposing sentence.
2
Section 3553(e) provides in relevant part that “[u]pon motion of the Government,
the court shall have the authority to impose a sentence below a level established by
statute as a minimum sentence so as to reflect a defendant‟s substantial assistance in the
investigation or prosecution of another person who has committed an offense.” 18
U.S.C. § 3553(e).
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II. Analysis3
As he did before the District Court, Winebarger now argues that consideration of
the § 3535(a) factors at his resentencing was appropriate where the Government moved
for a sentence below the statutory minimum. In light of our prior decision in this case,
Winebarger‟s argument lacks merit. In that opinion, we held “that the limited statutory
authority granted by 18 U.S.C. § 3553(e) does not authorize a district court to reduce a
sentence below a statutory minimum based on considerations unrelated to that
defendant‟s substantial assistance to law enforcement authorities.” Winebarger, 664 F.3d
at 397. We then set forth the procedure to follow in cases involving mandatory minimum
sentences and § 3553(e) motions: “the court . . . start[s] with the mandatory minimum
sentence as a baseline and then, after granting the § 3553(e) motion, . . . determine[s] the
extent to which the defendant‟s cooperation warranted a divergence from that baseline.”
Id.
We also noted that § 5K1.1 of the Sentencing Guidelines “sets out an instructive,
though not exhaustive, list of factors a sentencing court should examine when assessing
that assistance and determining how far below a statutory minimum it will sentence a
defendant pursuant to § 3553(e).” Id. We acknowledged that, pursuant to our decision in
United States v. Casiano, 113 F.3d 420 (3d Cir. 1997), the extent of the departure could
be reduced based on other factors not enumerated in § 3553(e) or Section 5K1.1.
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The District Court had jurisdiction under 18 U.S.C. § 3231. We have
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However, those factors cannot increase the extent of the departure. Winebarger, 664 F.3d
at 397.
We review a district court‟s sentence in two stages: first, we ensure that the
district court committed no significant procedural error; second, we consider whether or
not the sentence is substantively reasonable. United States v. Tomko, 562 F.3d 558, 567
(3d Cir. 2009) (en banc). In evaluating an appeal of a sentence, we review the District
Court‟s sentencing decision under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007); Tomko, 562 F.3d at 567.
On remand, the District Court carefully followed our instructions. The Court
started with the mandatory minimum sentence, granted the Government‟s § 3553(e)
motion, and then determined the extent of the divergence warranted by Winebarger‟s
assistance. As such, the District Court committed no procedural error. Similarly, we find
that the District Court‟s sentence was substantively reasonable. The Government
explained Winebarger‟s assistance, as well as the increased danger to Winebarger in
prison created by the publication of this Court‟s opinion. Relying upon that
representation, the District Court granted a reduction of sentence approximately 25%
below the statutory mandatory minimum sentence. We find that decision reasonable.
Winebarger‟s reliance on United States v. Booker, 543 U.S. 220 (2005), confuses
the role of sentencing statutes and the Sentencing Guidelines. Booker held that the
Sentencing Guidelines are advisory; nowhere in that opinion did the Supreme Court
jurisdiction, pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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suggest that sentencing statutes, properly enacted by Congress, are advisory. In accord
with this view, we have held that unlike the Sentencing Guidelines, which are advisory,
statutorily established sentences are mandatory. See, e.g., United States v. Reevey, 631
F.3d 110, 113 (3d Cir. 2010) (“unlike the advisory sentencing guidelines range, „the
statutory minimum drug trafficking penalty in 21 U.S.C. § 841(b) . . . is mandatory‟”
(quoting United States v. Gunter, 462 F.3d 237, 248 (3d Cir. 2006))).4
III. Conclusion
On remand, the District Court carefully followed our instructions and imposed a
sentence that was both procedurally and substantively reasonable. We find the Court did
not abuse its discretion. We will affirm the judgment of conviction.
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Similarly, Winebarger seeks to invoke the Supreme Court‟s pronouncement in
Pepper v. United States, 131 S.Ct. 1229 (2011), to his advantage, but to no avail. In
Pepper, the Supreme Court affirmed the notion that, pursuant to both § 3661 and
§ 3553(a), “a district court at resentencing may consider evidence of the defendant‟s
postsentencing rehabilitation and that such evidence may, in appropriate cases, support a
downward variance from the now-advisory Federal Sentencing Guidelines range.”
Pepper, 131 S.Ct. at 1236. This holding is a far cry from what Winebarger seeks to
utilize here. Pepper does not address statutory mandatory minimums. As such, the
holding of Pepper provides no solace here.
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