United States v. Armstead ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-26-2006
USA v. Armstead
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3587
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"USA v. Armstead" (2006). 2006 Decisions. Paper 838.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-3587
__________
UNITED STATES OF AMERICA,
v.
ROBERT ARMSTEAD a/k/a Ronald Woodson
Robert Armstead,
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
No. 00-CR-0006
District Judge: Honorable J. Curtis Joyner
__________
Submitted May 12, 2006
Pursuant to Third Circuit L.A.R. 34.1(a)
Before: BARRY, SMITH and TASHIMA*, Circuit Judges
(Opinion filed: June 26, 2006 )
__________
OPINION
__________
*
Honorable A. Wallace Tashima, Senior United States Circuit Judge for the
Ninth Circuit Court of Appeals, sitting by designation.
TASHIMA, Circuit Judge:
This is defendant-appellant Robert Armstead’s second appeal from his sentence.
Armstead was convicted, on a plea of guilty, of conspiracy to distribute more than 50
grams of cocaine base, possession of cocaine base with the intent to distribute within
1,000 feet of a school, in violation of 21 U.S.C. §§ 846, 860, and 841(a)(1), and
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c). At the original sentencing hearing, the district court granted a
downward departure, pursuant to U.S.S.G. § 5K1.1, from a mandatory minimum life
sentence and imposed a sentence of 15 years’ imprisonment. On appeal, we affirmed the
judgment and commitment order because “we [did] not have jurisdiction to review the
extent of the downward departure.” United States v. Armstead, 117 Fed. Appx. 182, 183
(3d Cir. 2004) (“Armstead I”). On certiorari, the Supreme Court vacated our judgment
and remanded for further consideration in light of United States v. Booker, 543 U.S. 220
(2005). Armstead v. United States, 543 U.S. 1181 (2005). We, in turn, remanded to the
district court for resentencing.
On remand, the district court resentenced Armstead to the same sentence, viz., 120
months’ imprisonment on the drug offenses, a consecutive 60-month term of
imprisonment on the firearm offense (for a total imprisonment of 180 months), to be
followed by 20 years’ supervised release. The district court also imposed a fine of $3,000
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and a special assessment of $300. This timely appeal followed. Ordinarily, we have
jurisdiction over sentencing appeals under 18 U.S.C. 3742.1 Concluding that we have
jurisdiction over this appeal, we reach the merits of Armstead’s contentions and affirm
the sentence.
I. Appellate Jurisdiction
It had been settled law under the Guidelines sentencing regime that a defendant
could not appeal the extent of a discretionary grant of a downward departure. See United
States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990) (cited in Armstead I, 117 Fed. Appx. at
183); United States v. Graham, 72 F.3d 352, 360-61, 361 n.10 (3d Cir. 1995) (collecting
cases). The government relies on those cases and on the Sentencing Reform Act of 1984
in contending that we have no appellate jurisdiction to review the sentence in this case.
Specifically, it contends that there is no appellate jurisdiction under § 3742(a) because the
sentence was not “imposed as a result of an incorrect application of the sentencing
guidelines; or is greater than the sentence specified in the applicable guideline range. . . .”
18 U.S.C. § 3742(a)(2)-(3).
The government’s contention, however, is foreclosed by our recent opinion in
United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), in which we concluded that there is
1
As we discuss below, the government challenges our jurisdiction over this
appeal.
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appellate jurisdiction over post-Booker sentencing appeals, in cases where the sentence is
within the Guidelines, under 18 U.S.C. § 3742(a)(1), which provides for appellate review
of sentences which were “imposed in violation of law.” See id. at 327. Our jurisdiction
in such cases is “to review [the] sentence for reasonableness under 18 U.S.C. §
3742(a)(1).”2 Id. We now turn to that task.
II. Is the Sentence Unreasonable
At sentencing, absent a downward departure, Armstead faced a statutory
mandatory sentence of life imprisonment. Even without the statutory mininum sentence,
the applicable Guidelines sentencing range called for a term of imprisonment of 21 to 27
years. Thus, in sentencing him to 10 years’ imprisonment on the drug counts, plus the
mandatory 60-month consecutive term for the firearm offense, the district court granted
Armstead a substantial downward departure under U.S.S.G. § 5K1.1. In imposing
sentence, in addition to taking the required factors into consideration, the court also
considered, and rejected, Armstead’s contention that he was entitled to a further reduction
because of his behavior in prison since the first sentencing and his assertion that he was a
changed man. We are satisfied that the sentencing court considered the § 3553(a) factors,
2
Cooper, however, confirms our pre-Booker case law that we continue to
lack jurisdiction to review discretionary decisions to deny departures and challenges to
the extent of a downward departure. 437 F.3d at 332-33. Thus, our review of the
sentence on this appeal is limited to a “reasonableness” review.
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Cooper, 437 F.3d at 330, and conclude that Armstead has failed to carry his “burden of
demonstrating unreasonableness,” id. at 332.
AFFIRMED.
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