United States v. Barron ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-24-2006
USA v. Barron
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2290
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2290
UNITED STATES OF AMERICA
v.
ROBERT LEE BARRON,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 03-cr-00214)
District Judge: Honorable Terrence F. McVerry
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 17, 2006
Before: RENDELL, VAN ANTWERPEN, and WEIS, Circuit Judges
(Filed: May 24, 2006)
____
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Before us is Robert Barron’s appeal from his 151-month sentence following a
guilty plea to drug charges. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and
will affirm.
I.
Because we write solely for the parties, we set forth only those facts necessary to our
analysis. On August 19, 2003, a grand jury in the Western District of Pennsylvania returned
a two-count indictment charging Barron at Count One with possession with intent to
distribute 50 grams or more of a mixture and substance containing a detectable amount of
cocaine base (“crack cocaine”) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(a)(iii).
Count Two of the indictment charged Barron with possession with intent to distribute less
than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D).
Barron entered an open guilty plea on August 3, 2004.
Before sentencing, Barron filed a motion for downward departure, claiming that the
Criminal History Category set forth in his Presentence Information Report (“PSR”)
overrepresented his criminal history. Barron argued against the application of a two-point
enhancement of his Criminal History score based on his arrest for the instant offense with
only three days remaining on a previously-imposed term of probation for a separate crime.
On April 13, 2005, the District Court held a sentencing hearing. At that proceeding,
the District Court granted Barron’s downward departure motion as it pertained to his
Criminal History score. This reduced Barron’s Criminal History score from 10 to 8, which
in turn yielded a Criminal History Category of VI. Applying the calculated offense level of
31, the District Court then sentenced Barron to 151 months imprisonment as to Count One
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of the indictment and 12 months on Count Two. The sentences were to run concurrently.1
II.
We review sentences for reasonableness. United States v. Cooper, 437 F.3d 324,
327 (3d Cir. 2006) (citing Booker v. United States, 543 U.S. 220 (2005)). To meet this
standard, “[t]he record must demonstrate that the trial court gave meaningful
consideration to the [18 U.S.C.] § 3553(a) factors.” Id. at 329. However, sentencing
courts need not make findings as to each of the § 3553(a) factors if the record makes clear
that the court took those factors into account at sentencing. Id.
Because Barron did not object at sentencing to the District Court’s alleged failure
to explain its consideration of the § 3553(a) factors, he bears the burden of establishing
plain error. United States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002). Under this
standard, there must be an error that is “plain” and affects “substantial rights.” United
States v. Evans, 155 F.3d 245, 251 (3d Cir. 1998) (citing United States v. Olano, 507 U.S.
725, 731-32 (1993)). An error is “plain” where it is “clear” or “obvious,” id., and an error
affects “substantial rights” where it impacted the outcome of the district court
proceedings. Id. When such an error exists, this Court has the authority to order
correction, but is not required to do so – we will exercise our discretion only if the error
also “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. (citation omitted).
1
With a Criminal History Category of V, Barron’s Guidelines range was 168-210
months; with a Criminal History Category of IV, the Guidelines range was 151-188 months.
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III.
A.
Barron first argues that his sentence was imposed in violation of law because the
District Court failed to place a statement of reasons on the record for the sentence
imposed. We are unpersuaded.
We stated in Cooper that a district court need not expressly articulate all of the
§ 3553(a) factors so long as it is clear that the district court considered them. 437 F.3d at
329. Our review of the record of the sentencing hearing in this case – which includes
both extensive argument by both parties and the District Court’s clear citation to the
§ 3553(a) factors – leaves us satisfied that the District Court gave the necessary
“meaningful consideration” to the § 3553(a) factors. Cooper, 437 F.3d at 329-30. To the
extent that Barron complains that the District Court did not explain its rejection of his
argument regarding the disparity between sentences imposed for crack cocaine and
powder cocaine, sentences imposed in connection with possession of crack cocaine have
survived equal protection and due process challenges, see United States v. Alton, 60 F.3d
1065, 1069 n.7 (3d Cir. 1995) (collecting cases), and we made clear in Cooper that
District Courts need address only those arguments that have merit. 437 F.3d at 329.
Accordingly, we perceive no error in the manner in which the District Court articulated
the basis for its decision. See id. at 332 (“[t]here are no magic words that a district judge
must invoke when sentencing”).
B.
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Barron next argues that his sentence was unreasonable because the District Court
erred legally by applying the Guidelines as mandatory and factually by failing to fully
appreciate the similarity between crack cocaine and powder cocaine. We reject both
arguments.
First, the record makes clear that the District Court recognized that the Guidelines
were advisory, not mandatory. See App. 97. As regarding the District Court’s alleged
failure to appreciate the similarity between crack cocaine and powder cocaine, the statutes
under which Barron was charged make clear the distinction between the two substances,
and we find no error in the District Court’s refusal to impose a sentence that Barron might
consider more representative of the relative harms posed by crack cocaine versus cocaine
powder. See United States v. Jones, 979 F.2d 317, 319 (3d Cir. 1992) (dismissing as
“without force” the argument that there is no difference between crack cocaine and
powdered cocaine).
C.
Barron’s final argument is that his sentence was greater than was necessary to
achieve the goals of his punishment. This argument fails.
The District Court considered the facts of the case along with Barron’s arguments
and the § 3553(a) factors. We are satisfied that Barron’s sentence was reasonable in light
of his convictions and criminal history, and that the District Court was properly attentive
to the relevant factors and the facts of this case. Accordingly, we discern no error, let
alone plain error, in the sentence.
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IV.
We have considered all other arguments made by the parties on appeal, and
conclude that no further discussion is necessary. For the foregoing reasons, we will
affirm Barron’s conviction and sentence.
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