United States v. Marshall ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-27-2009
USA v. Marshall
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4778
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Marshall" (2009). 2009 Decisions. Paper 1984.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1984
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4778
UNITED STATES OF AMERICA
v.
BURTRAN MARSHALL,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Crim. No. 05-cr-00100-1)
District Judge: The Honorable Sue L. Robinson
Submitted Under Third Circuit LAR 34.1(a)
January 15, 2009
Before: SLOVITER, BARRY, and SILER, JR.,* Circuit Judges
(Opinion Filed: January 27, 2009 )
OPINION
*
The Honorable Eugene E. Siler, Jr., Senior Circuit Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
BARRY, Circuit Judge
Appellant Burtran Marshall pled guilty to a single count of possession with the
intent to distribute more than 50 grams of cocaine base. See 21 U.S.C. § 841. A
minimum sentence of ten years was statutorily mandated and a Guidelines range of 108 to
135 months was computed. The District Court sentenced Marshall to 130 months’
imprisonment. Marshall filed this timely appeal. We will affirm.
I.
In the summer of 2003, the Wilmington, Delaware police department received a tip
from a confidential informant that Marshall was engaged in drug trafficking in the City of
Wilmington. Acting on this tip, the police orchestrated two controlled buys of crack
cocaine from Marshall, after which they arrested him, and obtained a warrant to search
his apartment. During the search, approximately 370 grams of crack cocaine were
discovered. Marshall was indicted by a grand jury in the District of Delaware for
possession with intent to distribute. In June 2007, he pled guilty to that charge. Before
sentence was imposed, the United States Sentencing Commission amended the
Sentencing Guidelines applicable to crack cocaine cases. Under this amendment,
Marshall faced a range of 108 to 135 months. However, and as noted above, he also
faced a ten-year mandatory minimum, and was sentenced to a term of imprisonment of
130 months, a within-Guidelines sentence, ten months above the mandatory minimum.
-2-
II.
Marshall contends that his sentence was unreasonable because the District Court
did not adequately consider the relevant 18 U.S.C. § 3553(a) factors and the disparity
between sentences in crack cocaine cases and powder cocaine cases. He also contends
that the ten-year mandatory minimum sentence constitutes cruel and unusual punishment.
None of these contentions has merit.
A.
The District Court’s discussion of the § 3553(a) factors was quite brief.
It is not usual for a defendant in your circumstances to come from
such a stable home. It is unusual for someone to come from such a stable
home to basically have wasted that opportunity that you were given. I don’t
see much positive happening in your life since you took this path [of
criminal conduct] in the 11th grade. . . .
You have demonstrated for me no respect for your family, no respect
for the community . . . , and certainly no respect for the law. . . .
So, in any event, I have considered all the factors set forth under
Title 18 of the United States Code, Section 3553(a). I have read the
memoranda. I have listened to [defense counsel] and [the prosecutor]. I’ve
considered all of these things. And . . . it is the judgment of the Court that
the defendant, Burtran K. Marshall, is hereby committed to the custody of
the Bureau of Prisons to be imprisoned for a term of 130 months.
The Court has considered all of the factors set forth under Title 18 of
the United States Code, Section 3553(a), and finds this sentence to be
reasonable and appropriate.
Based on the serious nature of the offense and the history and
characteristics of this defendant, the imposed sentence promotes deterrence,
respect for the law, provides just punishment and protect [sic] the public
from any further crime committed by this particular defendant.
(App. 80-81.)
The District Court’s discussion, albeit brief, was sufficient to justify the sentence.
-3-
The Court considered the statutory factors, applied them to Marshall’s circumstances, and
thus met the requirements for individualized sentencing.
Marshall’s contention as to the crack-powder disparity can be easily dismissed. He
received the benefit of the Sentencing Commission’s crack cocaine Guidelines
amendment, and the District Court was entirely justified in declining to grant further
relief on this basis. Simply put, nothing in Kimbrough v. United States, 128 S. Ct. 558
(2007), requires a District Court to sentence a crack cocaine defendant at the same or a
similar level as it would sentence a powder cocaine defendant.
In sum, Marshall’s within-Guidelines sentence was eminently reasonable, both
procedurally and substantively. Cf. Rita v. United States, 127 S. Ct. 2456, 2463 (2007)
(observing that, on appellate review, a sentence within the Guidelines range will more
likely be reasonable because both the Commission and the District Court reached the
“same conclusion as to the proper sentence”) (emphasis in original).
B.
Marshall contends that the ten-year mandatory minimum sentence imposed by
Congress for the crime he committed constitutes cruel and unusual punishment in
violation of the Eighth Amendment both because the sentence is disproportionate to his
crime, and disproportionate when compared to the sentences of powder cocaine
-4-
defendants. This argument is without merit.1 See, e.g., United States v. Albino, 432 F.3d
937, 938 (9th Cir. 2005) (ten-year mandatory minimum for possession of 1000 or more
marijuana plants is not violative of the Eighth Amendment); United States v. Frazier, 981
F.2d 92, 95-96 (3d Cir. 1992) (finding that crack-powder disparity does not constitute
cruel and unusual punishment); see also United States v. Lee, 523 F.3d 104, 106-07 (2d
Cir. 2008) (holding that Kimbrough has no application to statutory minimums).
III.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.
1
Counsel seems to acknowledge this fact: he includes two footnotes observing that
Marshall asked him to preserve the issue for appeal. (See Appellant’s Br. 9 n.3; id. at 24
n.4.)
-5-