United States v. Razhon Dickey ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-1391
_____________
UNITED STATES OF AMERICA
v.
RAZHON A DICKEY, a/k/a R,
RAZHON A. DICKEY,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 3-09-cr-0034-001)
District Judge: Honorable Kim R. Gibson
Submitted Under Third Circuit LAR 34.1(a)
on October 27, 2011
Before: FISHER, VANASKIE and ROTH, Circuit Judges
(Opinion filed: January 25, 2012)
OPINION
ROTH, Circuit Judge:
Razhon A. Dickey appeals the District Court’s January 31, 2011, judgment of
sentence. Dickey contends that the District Court erred in finding that the Fair
Sentencing Act of 2010 did not apply to him and failed to rule on his motion for a
downward variance. For the following reasons, we will vacate the sentence the District
Court imposed and remand for resentencing.
I. Background
In June 2009, as part of an ongoing investigation into the distribution of cocaine,
law enforcement agents worked with a confidential informant to make several controlled
purchases of crack cocaine from Dickey. As a result of the transactions, 24.8 grams of
cocaine base were attributable to him.
On September 15, 2009, the grand jury returned a five-count Indictment charging
Dickey with conspiracy to distribute and possess with intent to distribute five or more
grams of cocaine base, in violation of 21 U.S.C. § 846 (Count I), distribution of five or
more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii)
(Counts 2 and 4), distribution of less than five grams of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 3), and possession with intent to distribute
less than five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C) (Count 5). On February 18, 2010, Dickey pled guilty to all five counts.
Prior to sentencing, Dickey moved for a downward departure and/or variance
based on the sentencing disparity between crack cocaine and powder cocaine, the
overstatement of his criminal history, and his personal history and characteristics. In
addition, he argued that the FSA applied to him. After thoroughly considering the issue,
the District Court declined to apply the FSA to Dickey and concluded that he would be
sentenced in accordance with the pre-FSA statutory mandatory minimums.
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At the sentencing hearing on January 26, 2011, the District Court determined that
Dickey had a total offense level of 21 and criminal history category of IV, resulting in an
advisory Guidelines range of 57 to 71 months. Because 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 846 imposed a mandatory minimum term of imprisonment of five
years, the District Court found that Dickey’s actual Guidelines range was 60 to 71
months. After considering the extensive record, including Dickey’s arguments for a
downward departure and/or variance, as well as the statutory factors set forth in 18
U.S.C. § 3553(a), the District Court sentenced Dickey to 64 months imprisonment on
each count, to run concurrently.
Dickey appealed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. §§ 1291 and 3742(a).
We review a district court’s legal conclusions regarding the United States
Sentencing Guidelines de novo, its application of the Guidelines to the facts for abuse of
discretion, and its factual findings for clear error. United States v. Blackmon, 557 F.3d
113, 118 (3d Cir. 2009).
III. Discussion
A. Fair Sentencing Act
Dickey contends that the District Court erred in finding that the FSA did not apply
to him. We recently held that the FSA requires application of the new mandatory
minimum sentencing provisions to all defendants sentenced on or after August 3, 2010,
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regardless of when the offense conduct occurred. United States v. Dixon, 648 F.3d 195,
203 (3d Cir. 2011). Thus, the government now concedes—as it must—that the FSA
applies to Dickey, who committed his drug offenses before August 3, 2010, but was
sentenced after that date.
The government contends, however, that the District Court’s failure to apply the
FSA when sentencing Dickey was harmless error that did not affect his sentence. In
particular, the government argues that the District Court imposed the 64-month sentence
based on consideration of the 18 U.S.C. § 3553(a) factors, without regard to the 60-month
mandatory minimum, and thus Dickey suffered no prejudice.
The use of an erroneous Guidelines range typically requires reversal, unless the
miscalculation is harmless. United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008).
The government, as the proponent of the sentence, bears the burden of persuading us that
the District Court would have imposed the same sentence absent the error. Id. at 215.
We will remand for resentencing unless we conclude on the record as a whole that it is
clear and unambiguous that the District Court would have imposed the same sentence
under the correct Guidelines range. Id. at 215-16. It is the District Court’s reasoning,
and not merely an overlap between the incorrect and correct Guidelines range, that is
determinative. Id. at 216.
The 64-month sentence the District Court imposed falls within both the incorrect
Guidelines range of 60 to 71 months and the correct Guidelines range of 57 to 71 months.
We cannot be sure, however, that on the record as a whole the District Court would have
imposed the same sentence had it concluded that the FSA did apply to Dickey and thus
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that the 60-month mandatory minimum did not. After carefully weighing the 18 U.S.C.
§ 3553(a) factors, the District Court explained that it “had chosen to remain within the
guidelines and impose a sentence at the lower to middle end of the guideline.” Because
the low end of the correct Guidelines range is three months less than the range the
District Court used, we cannot conclude that the erroneous Guidelines calculation was
harmless. We will, therefore, vacate Dickey’s sentence and remand the case to the
District Court for resentencing.
B. Motion for Downward Variance
Dickey also argues that the District Court failed to rule on his motion for a
downward variance based upon the sentencing disparity between crack cocaine and
powder cocaine. Because we will vacate the sentence entered by the District Court and
remand for resentencing based on Dickey’s FSA argument, we do not reach this issue.
IV. Conclusion
For the foregoing reasons, we will vacate the judgment of sentence and remand for
resentencing.
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