United States v. Wise

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

2-12-2008

USA v. Wise

Precedential or Non-Precedential: Precedential

Docket No. 06-4926

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No: 06-4926/4928

_______________

UNITED STATES OF AMERICA

v.

JAYCEE WISE,

Appellant in 06-4926

EDWIN MICHAEL BROWN,

Appellant in 06-4928

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 05-cr-0449-1-2)

District Judge: Honorable Yvette Kane

_______________

Argued January 3, 2008

Before: FUENTES, JORDAN, Circuit Judges

and DuBOIS*, District Judge.

(Filed: February 12, 2008)

_______________

Dennis E. Boyle

Boyle & Wenger

1525 Cedar Cliff Drive

Camp Hill, PA 17011

Counsel for Appellant Jaycee Wise

Ronald A. Krauss [ARGUED]

Office of Federal Public Defender

100 Chestnut Street

Harrisburg, PA 17101

Counsel for Appellant Edwin Brown

Theodore B. Smith, III [ARGUED]

Eric Pfisterer

Michael A. Consiglio

Office of United States Attorney

228 Walnut Street

P.O. Box 11754

Harrisburg, PA 17108

Counsel for Appellee

_______________

*Honorable Jan E. DuBois, United States District Court

Judge for the Eastern District of Pennsylvania, sitting by

designation.

2

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Edwin Michael Brown and Jaycee Wise were each

convicted of possession with intent to distribute crack

cocaine, possession of a firearm in furtherance of a drug

trafficking offense, and possession of a firearm by a convicted

felon. On appeal, Brown and Wise challenge their

convictions as well as the sentences of imprisonment imposed

on them by the District Court. Beyond the obvious

significance of these appeals to the appellants themselves,

these appeals are of particular note because they represent the

first cases in this Circuit to address the differential in the

powder cocaine and crack cocaine Sentencing Guidelines

since the Supreme Court’s recent decision in Kimbrough v.

United States, 128 S. Ct. 558 (2007) and the United States

Sentencing Commission’s recent amendment to the

Guidelines ranges for crack cocaine offenses. For the reasons

set forth below, we will affirm.

I. Background

In the Spring of 2005, the Harrisburg Bureau of Police

began receiving citizen complaints regarding illegal drug

dealing in the house located at 328 Hummel Street in

Harrisburg, Pennsylvania. On May 27, 2005, after

confidential informants provided further information about

3

the illicit activities at that address, and after one of the

informants purchased cocaine using marked bills, officers

entered the house pursuant to a search warrant. An officer

found defendant Wise standing on the second floor, near the

stairway. Wise ran into a nearby bedroom when he saw the

officer, but was eventually taken into custody. The officers

found a plastic bag containing 21 individually-wrapped

packets of crack cocaine on the stairway close to where Wise

had been standing. The officers also discovered a loaded

semiautomatic pistol laying on a mattress in the bedroom into

which Wise had fled.

The officers found defendant Brown lying on a bed in

a third-floor bedroom. He was also taken into custody. The

officers discovered a sawed-off shotgun between the mattress

and the box spring of the bed on which Brown had been lying.

In addition, they found in Brown’s pocket two bills from the

marked currency that had been used by the confidential

informant to purchase cocaine.

Brown and Wise were charged with possession with

intent to distribute 50 or more grams of crack cocaine (in

violation of 21 U.S.C. § 841(a)(1)), possession of a firearm in

furtherance of a drug trafficking offense (in violation of 18

U.S.C. § 924(c)), and possession of a firearm by a convicted

felon (in violation of 18 U.S.C. § 922(g)(1)). The counts of

the superceding indictment charging possession with intent to

distribute crack cocaine and charging possession of a firearm

in furtherance of that offense also charged Brown and Wise as

aiders and abettors in those offenses (in violation of 18 U.S.C.

§ 2).

4

At trial, the government presented testimony from a

number of witnesses who identified Brown and Wise as

armed crack cocaine dealers. Among the witnesses was Mr.

Carter Chilson, the lessee of 328 Hummel Street. Chilson

testified that, in exchange for receiving drugs over a six to

eight week period, he allowed Brown and Wise to live in and

sell crack cocaine from his home. According to Chilson,

Brown and Wise received from their supplier on nearly a daily

basis a $1,000 package of crack cocaine, which contained

approximately 100 individual packets of crack cocaine similar

in size to the 21 individual packets the officers had recovered

from the stairway at 328 Hummel Street.

At trial, Brown and Wise stipulated that the total

amount of crack cocaine contained in the 21 packets

recovered from the house was 3.1 grams. Thus, based on

Chilson’s estimate that 100 such packets were provided to

Brown and Wise almost daily, the amount of crack cocaine

that had been delivered to and sold by the defendants over the

six to eight week period amounted to substantially more than

300 grams. Chilson also testified that, while selling drugs, the

defendants possessed and displayed firearms, namely, the

semiautomatic pistol and the sawed-off shotgun.

A jury found Brown and Wise guilty on all charges.

The jury also found, through special interrogatories, that each

defendant had possessed with the intent to distribute more

than 50 grams of crack cocaine and had brandished a firearm

in furtherance of a drug trafficking offense.

5

As a result of the jury’s verdict, each of the defendants

was subject to a statutory range of imprisonment of 17 years

to life: 10 years to life for the drug offense, a maximum of 10

years for possessing a firearm as a convicted felon, and a

consecutive term of 7 years to life for brandishing a firearm in

furtherance of a drug trafficking offense. In order to

determine the appropriate sentences to impose within that

range, the District Court first calculated the applicable

sentencing ranges under the United States Sentencing

Guidelines (the “Guidelines”).1 Consistent with instructions

in the Guidelines, U.S.S.G. § 3D1.2, the Court grouped

together the drug offense and the § 922(g)(1) firearm offense,

i.e., felon in possession of a firearm. Finding that each of the

defendants was responsible for possessing with intent to

distribute more than 150 grams of crack cocaine, the Court

then assigned each of the defendants a base offense level of

34 for those two offenses, in accordance with the version of

the Guidelines then in effect. See U.S.S.G. § 2D1.1(c)(3)

(Nov. 1, 2006) (offenses involving more than 150 grams but

less than 500 grams of crack cocaine are categorized at a base

offense level of 34); § 3D1.3(a) (offense level applicable to

group is offense level for most serious offense).

1

While the Presentence Investigation Reports employed the

2005 version of the Guidelines, the 2006 version of the

Guidelines was in effect on the date Brown and Wise were

sentenced, and was used at sentencing. The 2005 and 2006

versions of the Guidelines do not differ in ways relevant to

this appeal.

6

Brown’s criminal history category of IV, combined

with an offense level of 34, yielded a Guidelines range of 210

to 262 months. U.S.S.G. Ch. 5 Pt. A, Sentencing Table.

Brown was also subject to a consecutive term of 84 months

for brandishing a firearm in furtherance of a drug trafficking

offense. See U.S.S.G. §2K2.4(b). Accordingly, his aggregate

Guidelines range was 294 to 346 months.

As required by our case law, the District Court then

exercised its discretion in determining Brown’s sentence by

considering the factors set forth in 18 U.S.C. § 3553(a).

Brown’s counsel urged the Court to take into consideration

the disparity in the Guidelines ranges for offenses involving

crack cocaine compared to those for powder cocaine. The

Court concluded that while the circumstances of Brown’s

offenses would make the imposition of a sentence “at the very

top” of the Guidelines range appropriate, the disparity in the

treatment of crack cocaine offenses and powder cocaine

offenses under Guidelines warranted a lower sentence:

I heard the testimony in the case. It was

very powerful testimony. The nature and the

circumstances of the offense are probably the

most serious of all the drug cases I’ve heard. It

wasn’t a hand-to-hand occasional sale on a

street corner, but it was a long-term drug

trafficking operation that took place in a

person’s private home.

The defendant and his co-defendant took

the house over and turned it into a crack house.

And as people said, it was like Grand Central

Station in there. Drug selling was going on 24

hours a day, and there were weapons. It’s

serious. It’s as serious as a drug case can get.

7

I consider that and balance it against the

history and characteristics of the defendant.

He’s relatively young, and that would militate

toward a lesser sentence, but I have to note that

he has a long history of violent crime beginning

at age 17. Records indicate he’s had drug

involvement, trafficking, since 18 years of age.

He’s been dealing drugs since the age of

majority.

I think the highest sentence is necessary

to reflect the seriousness of the offense, to

promote respect for the law, and to deter this

defendant and to protect the public from his

future conduct.

I do consider the powder/crack cocaine

disparity. I think the Court should. I think the

guideline range is much higher, much, much

higher than it would be had the defendant been

dealing powder cocaine, so I consider that in the

calculations. I’m also considering the fact that

the defendant is going to be serving an 84

consecutive-month sentence [for the 18 U.S.C.

§ 924(c) violation].

Everything about this case suggests to

me that a guideline sentence at the very top of

the range is warranted. I can’t picture a case in

this guideline range that would be – would

represent worse conduct than what we saw here.

But I am looking at the defendant’s age.

I’m looking at the disparity between powder and

8

crack cocaine. So I’m going to sentence him in

the middle of the guideline range.

(Brown App. at 790-91.) Ultimately, the Court sentenced

Brown to 324 months in prison and five years of supervised

release.2

The District Court undertook the same process with

respect to Wise, who was sentenced on the same day. Wise’s

criminal history category of III, combined with an offense

level of 34, yielded a Guidelines range of 188 to 235 months.

U.S.S.G. Ch. 5 Pt. A, Sentencing Table. Wise was also

subject to a consecutive term of 84 months for brandishing a

firearm in furtherance of a drug trafficking offense. See

U.S.S.G. §2K2.4(b). Accordingly, his aggregate Guidelines

range was 272 to 319 months.

As it had done with Brown, the District Court

considered the crack/powder cocaine disparity as part of its

consideration of the § 3553(a) factors, stating “I think the

Court can consider what the guidelines would have been had

the calculation been for powder rather than crack cocaine and

consider that as part of the background and circumstances

under 3553(a). I do that here.” (Wise App. at 825.)

Nevertheless, the Court concluded that a within-Guidelines

2

The sentence of imprisonment included 240 months for

the drug offense, 120 months for the § 922(g)(1) firearm

offense, to be served concurrently with the sentence for the

drug offense, and 84 months for the § 924(c) firearm offense,

to be served consecutively to the other two sentences.

9

sentence was appropriate and sentenced Wise to 319 months

in prison and five years of supervised release.3

On appeal, Brown and Wise challenge both their

convictions and their sentences. We have jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II. Discussion

A. Challenges to the Convictions

The defendants first argue that the District Court

erroneously denied their motions for judgments of acquittal

because the evidence presented at trial was insufficient to

permit the jury to find them guilty beyond a reasonable doubt.

We review a defendant’s challenge to the sufficiency of the

evidence in the light most favorable to the government.

United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). We

will sustain a verdict “if a rational trier of fact could have

found the defendant guilty beyond a reasonable doubt and if

the verdict is supported by substantial evidence.” Id.

The essence of the defendants’ challenge to the

sufficiency of the evidence is that the witnesses who testified

against them were not credible because they were all drug

users. However, it is not our role to weigh the credibility of

the witnesses. Indeed, we “must be ever vigilant ... not to

usurp the role of the jury by weighing credibility and

assigning weight to the evidence, or by substituting [our]

3

The sentence of imprisonment included 235 months for

the drug offense, 120 months for the § 922(g)(1) firearm

offense, to be served concurrently with the sentence for the

drug offense, and 84 months for the § 924(c) firearm offense,

to be served consecutively to the other two sentences.

10

judgment for that of the jury.” United States v. Brodie, 403

F.3d 123, 133 (3d Cir. 2005). Given that constraint, a review

of the record reveals that the evidence is more than sufficient

to sustain the verdicts. For example, Chilson’s testimony,

which the jury was entitled to credit, indicated that Brown and

Wise had sold more than 300 grams of crack cocaine during a

period of six to eight weeks and, while doing so, had

possessed and brandished firearms. Accordingly, we find no

error in the District Court’s denial of the defendants’ motions

for judgments of acquittal.

Wise also challenges his conviction on three additional

grounds, none of which requires extensive discussion. Wise

first argues that the District Court erred in failing to instruct

the jury that it must unanimously agree on the specific type of

firearm he possessed in violation of 18 U.S.C. § 924(c)(1)(A).

Because he did not make this argument to the District Court,

we review the jury instructions for plain error, United States

v. Williams, 464 F.3d 443, 445 (3d Cir. 2006), and we find

none.

Contrary to Wise’s assertion, the jury was not required

to unanimously agree on the type of weapon that he

possessed, because a specific type of firearm is not an element

of a violation under 18 U.S.C. § 924(c)(1)(A). United States

v. Hernandez-Albino, 177 F.3d 33, 40 (1st Cir. 1999); United

States v. Morin, 33 F.3d 1351, 1353-54 (11th Cir. 1994);

United States v. Correa-Ventura, 6 F.3d 1070, 1082-87 (5th

Cir. 1993); cf. Richardson v. United States, 526 U.S. 813, 818

(1999) (“Where, for example, an element of robbery is force

or the threat of force, some jurors might conclude that the

defendant used a knife to create the threat; others might

conclude he used a gun. But that disagreement–a

disagreement about means–would not matter as long as all 12

jurors unanimously concluded that the Government had

11

proved the necessary related element, namely, that the

defendant had threatened force.”). This court has previously

remarked in dicta that a district court had properly instructed

the jury that it must unanimously agree on which weapon a

defendant had used during a drug trafficking crime in order to

convict him under 18 U.S.C. § 924(c)(1) (1986). United

States v. Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989),

overruled on other grounds by United States v. Price, 76 F.3d

526, 528 (3d Cir. 1996). But we did not state that such an

instruction is required in every case, nor do we believe, in

light of the Supreme Court’s subsequent opinion in

Richardson, that such an instruction was required in this case.

The two defendants, charged both as principals and aiders and

abettors, were found with two firearms. Eyewitness testimony

described each of them brandishing the firearms during their

drug dealing. Further specificity about the weapons is not

necessary to sustain a conviction under the statute.

Next, Wise argues that the District Court abused its

discretion in refusing to suppress a witness’s in-court

identification of him on the basis that it was tainted by an

unnecessarily suggestive pretrial identification procedure. We

disagree. Even if a pretrial identification procedure is

suggestive, a subsequent in-court identification is admissible

“unless the pretrial identification procedure was so

unnecessarily suggestive as to give rise to such a substantial

likelihood of irreparable misidentification that admitting the

identification testimony would be a denial of due process.”

United States v. Clausen, 328 F.3d 708, 713 (3d Cir. 2003).

The “central question” in such a case is “whether under the

‘totality of the circumstances’ the identification was reliable,”

even though the pretrial procedure was suggestive. Neil v.

Biggers, 409 U.S. 188, 199-200 (1972) (outlining the factors

courts should consider in assessing reliability).

12

In this case, the District Court did not err in concluding

that there was no substantial likelihood of irreparable

misidentification. Before the witness took the stand, the

prosecutor imprudently showed her a mug shot of Wise with

the words “Harrisburg Police Department” written across the

top. Even if we accept, however, that the procedure was

unnecessarily suggestive, the record still supports the District

Court’s conclusion that the witness’s in-court identification of

Wise was reliable. The evidence shows that, prior to Wise’s

arrest, the witness had lived with him for over a month in the

house at 328 Hummel Street. Accordingly, the District Court

did not abuse its discretion in admitting the in-court

identification.

Finally, in a related argument, Wise alleges that the

manner in which his counsel objected to the District Court’s

admission of the in-court identification amounted to

ineffective assistance. Except in limited circumstances,

however, “[i]t has long been the practice of this court to defer

the issue of ineffectiveness of trial counsel to a collateral

attack,” United States v. Thornton, 327 F.3d 268, 271 (3d Cir.

2003), and we will continue that practice here.

B. Challenges to the Sentences

Brown and Wise next challenge, on a number of

grounds, the sentences imposed upon them. We reject their

arguments and affirm the District Court’s judgments of

sentence.

1. Post-Booker Sentencing

In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court held that the Sentencing Guidelines are

advisory only. Recently, in Gall v. United States, 128 S. Ct.

13

586 (2007), the Court reiterated the process a district court

must undertake after Booker to determine the appropriate

sentence for a defendant:

[A] district court should begin all sentencing

proceedings by correctly calculating the

applicable Guidelines range. As a matter of

administration and to secure nationwide

consistency, the Guidelines should be the

starting point and the initial benchmark. The

Guidelines are not the only consideration,

however. Accordingly, after giving both parties

an opportunity to argue for whatever sentence

they deem appropriate, the district judge should

then consider all of the § 3553(a) factors to

determine whether they support the sentence

requested by a party. In so doing, he may not

presume that the Guidelines range is

reasonable. He must make an individualized

assessment based on the facts presented. If he

decides that an outside-Guidelines sentence is

warranted, he must consider the extent of the

deviation and ensure that the justification is

sufficiently compelling to support the degree of

the variance. We find it uncontroversial that a

major departure should be supported by a more

significant justification than a minor one. After

settling on the appropriate sentence, he must

adequately explain the chosen sentence to allow

for meaningful appellate review and to promote

the perception of fair sentencing.

Id. at 596-97 (internal citations omitted).

14

The Supreme Court’s opinion in Gall reemphasizes

the post-Booker sentencing structure set forth in this Court’s

precedent. See, e.g., United States v. Ali, 508 F.3d 136, 142,

153-54 (3d Cir. 2007) (district court must first calculate the

applicable Guidelines range “precisely as [it] would have

before Booker,” then “give meaningful consideration to the

relevant § 3553(a) factors and state adequate reasons for a

sentence on the record so that this court can engage in

meaningful appellate review” (internal quotation marks and

citations omitted)); United States v. Gunter, 462 F.3d 237,

247 (3d Cir. 2006) (same); United States v. Cooper, 437 F.3d

324, 329-30 (3d Cir. 2006) (same). In essence, the district

court must perform three steps in determining the appropriate

sentence to impose on a defendant. As Gall makes clear, a

district court must begin the process by correctly calculating

the applicable Guidelines range. 128 S. Ct. at 596; see also

Gunter, 462 F.3d at 247. As part of calculating the

applicable range, this Court’s precedent instructs district

courts to conduct a second step, which is to “formally rule on

the motions of both parties and state on the record whether [it

is] granting a departure and how that departure affects the

Guidelines calculation, and take into account our Circuit’s

pre-Booker case law, which continues to have advisory

force.” Gunter, 462 F.3d at 247 (internal quotation marks

and citation omitted). Finally, after giving both sides the

chance to argue for the sentences they deem appropriate, the

court must exercise its discretion by considering all of the

§ 3553(a) factors4 and determining the appropriate sentence to

4

Those factors are:

(1) the nature and circumstances of the offense

and the history and characteristics of the

defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the

15

offense, to promote respect for the law,

and to provide just punishment for the

offense;

(B) to afford adequate deterrence to

criminal conduct;

(C) to protect the public from further

crimes of the defendant; and

(D) to provide the defendant with needed

educational or vocational training,

medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing

range established for--

(A) the applicable category of offense

committed by the applicable category of

defendant as set forth in the guidelines--

(i) issued by the

Sentencing

Commission ...,

subject to any

amendments made

to such guidelines

by act of Congress

...; and

(ii) that, except as

provided in section

3742(g), are in

effect on the date

the defendant is

sentenced; ...

...

(5) any pertinent policy statement--

(A) issued by the Sentencing

16

impose. Gall, 128 S. Ct. at 596; Gunter, 462 F.3d at 247.

As an appellate court, our role is two-fold. We must

first ensure that the district court committed no significant

procedural error in arriving at its decision, “such as failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence–including an explanation for any deviation from the

Guidelines range.” Gall, 128 S. Ct. at 597. We review the

district court’s decision under an abuse-of-discretion standard,

id., but the amount of deference we give will depend on the

type of procedural error asserted on appeal. For example, a

district court will be held to have abused its discretion if its

decision was based on a clearly erroneous factual conclusion

or an erroneous legal conclusion. United States v. McComb,

No. 07-5003, 2007 WL 4393142, at *3 (10th Cir. Dec. 18,

2007); see also Koon v. United States, 518 U.S. 81, 100

Commission ..., subject to any

amendments made to such policy

statement by act of Congress ...;

(B) that, except as provided in

section 3742(g), is in effect on the

date the defendant is sentenced.

(6) the need to avoid unwarranted sentence

disparities among defendants with similar

records who have been found guilty of similar

conduct; and

(7) the need to provide restitution to any victims

of the offense.

Section 3553(a) directs courts to “impose a sentence

sufficient, but not greater than necessary,” to comply with the

purposes of sentencing set forth in the second factor.

17

(1996) (“A district court by definition abuses its discretion

when it makes an error of law.”); Cooter & Gell v. Hartmax

Corp., 496 U.S. 384, 401(1990) (“When an appellate court

reviews a district court’s factual findings, the

abuse-of-discretion and clearly erroneous standards are

indistinguishable: A court of appeals would be justified in

concluding that a district court had abused its discretion in

making a factual finding only if the finding were clearly

erroneous.”). Thus, if the asserted procedural error is purely

factual, our review is highly deferential and we will conclude

there has been an abuse of discretion only if the district

court’s findings are clearly erroneous. Gall, 128 S. Ct. at 597;

see also United States v. Grier, 475 F.3d 556, 570 (3d Cir.

2007) (en banc) (“A sentence imposed as a result of a clearly

erroneous factual conclusion will generally be deemed

‘unreasonable’ ... .”). On the other hand, we do not defer to a

district court when the asserted procedural error is purely

legal, as, for example, when a party claims that the district

court misinterpreted the Guidelines.5 Grier, 475 F.3d at 570.

If we determine that the district court has committed

no significant procedural error, we then review the

5

Of course, not all issues that may be raised on appeal can

be neatly separated into the categories of “fact” and “law.”

But whether or not a particular issue fairly fits into one of

those categories, we must review the district court’s decision

under “the familiar abuse-of-discretion standard.” Gall, 128

S. Ct. at 594; cf. Koon, 518 U.S. at 100 (“That a departure

decision, in an occasional case, may call for a legal

determination does not mean, as a consequence, that parts of

the review must be labeled de novo while other parts are

labeled an abuse of discretion.”); Cooter, 496 U.S. at 403

(court of appeals should apply “a unitary abuse-of-discretion

standard”).

18

substantive reasonableness of the sentence under an abuse-of-

discretion standard, regardless of whether it falls within the

Guidelines range. Gall, 128 S. Ct. at 597. We may consider

the extent of a court’s deviation from the Guidelines range,

but we “must give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.” Id.; see also United States v.

Greenidge, 495 F.3d 85, 102 (3d Cir. 2007) (“In this final

step, our review is, to a great degree, deferential, because we

recognize that the trial court is in the best position to

determine the appropriate sentence.” (internal quotation

marks and citation omitted)). We may not reverse the district

court simply because we would have imposed a different

sentence. Gall, 128 S. Ct. at 597. Instead, we continue to

recognize that “‘reasonableness is a range, not a point.’”

Cooper, 437 F.3d at 332 n. 11 (quoting United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)). As long as

a sentence falls within the broad range of possible sentences

that can be considered reasonable in light of the § 3553(a)

factors, we must affirm. See McComb, 2007 WL 4393142, at

*3 (“[W]e recognize that in many cases there will be a range

of possible outcomes the facts and law at issue can fairly

support; rather than pick and choose among them ourselves,

we will defer to the district court's judgment so long as it falls

within the realm of these rationally available choices.”).

2. Procedural Challenges

Turning to this case, we begin by considering whether

the District Court committed any procedural error. The

defendants assert that the District Court committed three

different types of procedural error: (1) it relied on a clearly

erroneous fact in calculating the applicable Guidelines ranges;

(2) it incorrectly calculated the applicable Guidelines ranges;

19

and (3) it applied the Guidelines as mandatory. We deal with

each of those procedural challenges below.

a. Erroneous Factual Finding

Brown and Wise first challenge the District Court’s

finding that, between them,6 they sold more than 150 grams of

crack cocaine. As noted above, the District Court will have

abused its discretion in imposing a sentence if it based its

Guidelines calculation on clearly erroneous facts. “A finding

is clearly erroneous when although there is evidence to

support it, the reviewing body on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed.” Concrete Pipe & Prods. of Cal., Inc. v. Constr.

Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993)

(internal quotation marks and citation omitted).

The record here leaves us with no such conviction.

The District Court’s finding regarding the relevant drug

quantity was based upon the evidence presented at trial, and

the same evidence that supports the jury’s finding that the

defendants sold more than 50 grams of crack cocaine also

supports the Court’s finding that they sold more than 150

grams. As earlier noted, officers recovered from the crime

scene 21 individually-wrapped packets of crack cocaine,

totaling 3.1 grams. Those packets, according to Chilson’s

6

It was not necessary for the District Court to determine

the amount of crack cocaine sold by Brown and Wise

individually because they aided and abetted one another in

their drug sales. See U.S.S.G. § 1B1.3(a)(1)(A) (“Unless

otherwise specified ... the base offense level ... shall be

determined on the basis of ... all acts and omissions

committed, aided, abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant ... .”).

20

testimony, were similar to the ones sold by Brown and Wise

during the six to eight week period they were operating their

crack business at 328 Hummel Street. Chilson also testified

that, during that period, Brown and Wise received from their

supplier 100 individual packets of crack cocaine on nearly a

daily basis. Thus, using the most conservative calculations

based on Chilson’s testimony, the amount of crack cocaine

that had been delivered to and sold by the defendants over the

relevant time period was greater than 300 grams. The District

Court specifically credited Chilson’s testimony, finding him

to be “a completely credible witness.” (Brown App. at 775;

see also Wise App. at 824-25 (“I believed everything that

[Chilson] said, and I believe the drug amounts that he put

before the Court.”).) After reviewing the evidence, we have

no concern, let alone a definite and firm conviction, that a

mistake has been made, and we therefore affirm the District

Court's drug quantity finding.7

7

Brown nevertheless argues that the District Court erred in

crediting Chilson’s testimony because, as a drug abuser, his

testimony lacked the indicia of reliability required by this

Court in United States v. Miele, 989 F.2d 659 (3d Cir. 1993).

But Miele does not, as Brown suggests, stand for the

proposition that a district court may never credit the testimony

of a drug abuser. Moreover, unlike in Miele, the Court here

based its finding on its first-hand observation of Chilson at

trial, which led the District Court to say Chilson was

“completely credible.” (Brown App. at 774-75.) Brown also

argues that District Court erred in applying the

preponderance-of-the-evidence standard in making its drug

quantity finding. The same argument, however, has already

been rejected by this Court. Grier, 475 F.3d at 568.

Wise also asserts that, with respect to the District

Court's factual finding regarding the amount of drugs, he was

“denied his right to a hearing” under Federal Rule of Criminal

21

b. Erroneous Guidelines

Calculations

Brown and Wise also argue that the District Court

committed procedural error by incorrectly calculating the

applicable Guidelines ranges. Effective November 1, 2007,

the United States Sentencing Commission adopted

Amendment 706, which modified the Guidelines ranges

applicable to crack cocaine offenses. In general, the effect of

Amendment 706 is to decrease by two levels the base offense

levels for crack cocaine offenses.8 See U.S.S.G. § 2D1.1

(Nov. 1, 2007); U.S.S.G. Supp. to App’x C, Amend. 706.

Brown and Wise argue that because the District Court

employed the Guidelines that were in effect on the day they

were sentenced, and because the Guidelines were amended

during the pendency of their appeals, the District Court’s

Guidelines calculation amounts to procedural error. Their

argument is unpersuasive.

Since Booker, the Guidelines are one factor among

several listed in 18 U.S.C. § 3553(a) that courts must consider

in determining the appropriate sentence to impose on a

defendant. Gall, 128 S. Ct. at 596-97. Specifically,

Procedure 32(i)(2) and (3)(B). (Wise Br. at 34.) The flaw in

that argument is that he had no right to a hearing. The

provisions of Rule 32 that he cites do not grant any such right

but say instead that “[t]he court may permit the parties to

introduce evidence on the objections” they may have to the

presentence report and that the court must rule on objections

or, for the reasons described in the rule, determine that no

ruling is necessary.

8

Amendment 706 was itself amended by Amendment 711

in ways not relevant to this appeal.

22

§ 3553(a)(4)(A)(ii) instructs that a court should consider the

Guidelines that “are in effect on the date the defendant is

sentenced.” 9 That statutory command has been incorporated

into the Guidelines themselves, which state that “[t]he court

shall use the Guidelines Manual in effect on the date that the

defendant is sentenced.” U.S.S.G. § 1B1.11(a).

The Guidelines are no longer mandatory, but that does

not render optional § 3553(a)(4)’s direction to consider the

Guidelines that are in effect on the date of sentencing.

Accordingly, we will continue to expect that district courts

will calculate the applicable sentencing ranges using the

Guidelines extant at the time of sentencing, and we will

continue to review the propriety of a sentence based on those

same Guidelines. United States v. Diaz, 245 F.3d 294, 300-

01, 305 (3d Cir. 2001) (citing U.S.S.G. § 1B1.11(a)). On

review, there are two exceptions to that rule: first, if applying

the version of the Guidelines in effect on the date of

sentencing presents an ex post facto problem, United States v.

Menon, 24 F.3d 550, 556 (3d Cir. 1994), and second, if a

subsequent guideline amendment “merely clarifies the law in

existence at the time of sentencing,” as opposed to working a

substantive change in the law. Diaz, 245 F.3d at 301. Neither

exception is applicable in this case. There is clearly no ex

post facto problem, and we have previously ruled that a post-

sentencing amendment reducing the base offense level

applicable to a particular offense is a substantive change and

9

Section 3553(a)(4)(A)(ii) provides an exception when a

case is remanded for resentencing; in that case, the district

court “shall apply the guidelines ... that were in effect on the

date of the previous sentencing of the defendant prior to the

appeal.” 18 U.S.C. § 3742(g).

23

is therefore not applied retroactively to cases on appeal.10

United States v. Marcello, 13 F.3d 752, 756 (3d Cir. 1994)

(affirming a defendant’s sentence even though a Guidelines

amendment that had taken effect during the pendency of the

defendant’s appeal had lowered the applicable Guidelines

range).

In this case, Brown and Wise were sentenced on

November 20, 2006. The District Court properly calculated

their Guidelines ranges using the version of the Guidelines

that was in effect on that date. We therefore find no

procedural error in the District Court’s Guidelines

calculation.

10

Marcello referred to an amended Guidelines range as

being “retroactive” under certain circumstances. That use of

“retroactive” was apt in the sense that the legal analysis

required in the case called for a discussion of the application

of an amended Guideline to a pre-amendment case. Indeed,

U.S.S.G. § 1B1.10 used to be entitled “Retroactivity of

Amended Guidelines Range (Policy Statement).” However,

in an important sense an amended range is not retroactive

because a defendant has no right to have the new range

applied to his case, either by a reviewing court on appeal or

by a district court on remand. Instead, what 18 U.S.C. §

3582(c)(2) and U.S.S.G. § 1B1.10 provide for is a mechanism

to allow district courts to consider whether the benefit of a

substantive amendment listed in § 1B1.10(c) should be given

to a qualifying defendant. See infra, at 25-26. It is perhaps

not coincidental that § 1B1.10 no longer has the word

“retroactivity” in its title but bears the new title “Reduction in

Term of Imprisonment as a Result of Amended Guideline

Range (Policy Statement).”

24

Nevertheless, Brown and Wise may be able to obtain

some benefit from Amendment 706 in the future, through a

procedure available in the District Court. Generally, a district

court may not alter a term of imprisonment once it has been

imposed. See 18 U.S.C. § 3582(c). However, § 3582(c)(2)

provides an exception:

[I]n the case of a defendant who has been

sentenced to a term of imprisonment based on a

sentencing range that has subsequently been

lowered by the Sentencing Commission

pursuant to 28 U.S.C. 994(o), upon motion of

the defendant or the Director of the Bureau of

Prisons, or on its own motion, the court may

reduce the term of imprisonment, after

considering the factors set forth in section

3553(a) to the extent that they are applicable, if

such a reduction is consistent with applicable

policy statements issued by the Sentencing

Commission.

Accordingly, if the applicable Guidelines range has been

lowered after a defendant has been sentenced, a district court

may–sua sponte, or upon motion of the defendant, or upon

motion of the Director of the Bureau of Prisons–reduce the

defendant’s sentence, but only if the reduction would be

consistent with a policy statement issued by the Sentencing

Commission. Id.

Defendants sentenced for crack cocaine offenses prior

to November 1, 2007 will, however, have to wait to seek the

relief provided in § 3582(c)(2). They cannot obtain that relief

immediately because § 1B1.10 of the Guidelines, entitled

“Reduction in Term of Imprisonment as a Result of Amended

Guideline Range (Policy Statement),” provides that a

25

reduction under § 3582(c)(2) is not authorized unless an

amendment reducing the applicable guidelines range is among

those listed in § 1B.10(c), see U.S.S.G. § 1B1.10(c) (Nov. 1,

2007), and Amendment 706 is not yet listed in § 1B.10(c).

Therefore, Brown and Wise cannot currently file an

application under § 3582(c)(2).11 But an amendment to §

1B1.10 is set to take effect on March 3, 2008. See 73 Fed.

Reg. 217-01 (Jan. 2, 2008). If and when that amendment

takes effect, district courts will, under the circumstances

specified in § 3582(c)(2), be authorized to reduce the

sentences of defendants whose Guidelines ranges would be

lowered by Amendment 706. Id. Our decision today is

without prejudice to Brown’s and Wise’s statutory right to

pursue reduced sentences in the District Court under §

3582(c)(2), if the amendment to Guideline § 1B1.10 becomes

effective on March 3, 2008.

11

Some may argue that, because the Guidelines are no

longer mandatory, defendants need not wait to apply for relief

under § 3582(c)(2). That fundamentally misunderstands the

limits of Booker. Nothing in that decision purported to

obviate the congressional directive on whether a sentence

could be reduced based on subsequent changes in the

Guidelines. As we have stated before, “[t]he language of the

applicable sections could not be clearer: the statute directs the

Court to the policy statement, and the policy statement

provides that an amendment not listed in subsection (c) may

not be applied retroactively pursuant to 18 U.S.C.

§ 3582(c)(2).” United States v. Thompson, 70 F.3d 279, 281

(3d Cir. 1995).

26

c. Erroneously Treated Guidelines

as Mandatory

Brown’s third, and final, contention of procedural error

is that the District Court erroneously treated the applicable

Guidelines range for his crack cocaine offense as mandatory.

See Gall, 128 S. Ct. at 597 (holding it is procedural error to

treat the Guidelines as mandatory). His argument implicates

the Supreme Court’s recent decision in Kimbrough v. United

States, 128 S. Ct. 558 (2007).

In Kimbrough, the Supreme Court held that district

courts are free to consider, as part of their analysis of the §

3553(a) factors, the disparity in the Guidelines ranges for

offenses involving crack cocaine compared to those for

powder cocaine. Id. at 575. The Court made clear that the

Guidelines ranges for crack cocaine offenses, like all of the

other Guidelines ranges, are advisory only. Id. at 564.

Accordingly, it held that “it would not be an abuse of

discretion for a district court to conclude when sentencing a

particular defendant that the crack/powder disparity yields a

sentence ‘greater than necessary’ to achieve § 3553(a)’s

purposes ... .” Id. at 575.

The Supreme Court’s decision in Kimbrough was

foreshadowed by this Court’s decision in Gunter, in which we

recognized that “there is nothing special about the crack

cocaine Sentencing Guidelines that makes them different, or

less advisory, than any other Guideline provision.” 462 F.3d

at 248. Although we made clear that district courts were

“under no obligation to impose a sentence below the

applicable Guidelines range solely on the basis of the

crack/powder cocaine differential,” we held that a district

court “errs when it believes that it has no discretion to

consider the crack/powder cocaine differential ... as simply

27

advisory at step three of the post-Booker sentencing process

(imposing the actual sentence after considering the relevant §

3553(a) factors).” Id. at 249. Consequently, in that case, we

vacated a defendant’s sentence and remanded for resentencing

when the district court’s remarks indicated that it believed it

was bound to follow the Guidelines for crack offenses. Id.

Brown argues that the District Court committed a

similar error here. According to Brown, his sentence must be

vacated because Kimbrough was decided after the District

Court sentenced him and “the record does not make clear

whether the District Court understood the full scope of its

discretion to consider the crack/powder disparity in imposing

sentence.” (Letter from Brown’s counsel to Court (Dec. 20,

2007).) The record belies that contention. In this case, unlike

in Gunter, there is simply no indication that the District Court

believed it lacked authority to consider the crack/powder

cocaine disparity as part of its § 3553(a) analysis. On the

contrary, there is every indication that the District Court did

understand that it had that authority. In responding to

Brown’s argument that the Court should take that disparity

into account in determining the sentence to impose, the

District Court stated, “I do consider the powder/crack cocaine

disparity. I think the Court should. I think the guideline

range is much higher, much, much higher than it would be

had the defendant been dealing powder cocaine, so I consider

that in the calculations.” (Brown App. at 791.)

The District Court’s statements at the sentencing

hearing were consistent with our holding in Gunter and the

Supreme Court’s holding in Kimbrough. Read as a whole, the

Court’s remarks at sentencing show that it understood that it

could sentence Brown outside the Guidelines range but chose

28

not to. We therefore reject Brown’s assertion that the District

Court erroneously treated the Guidelines as mandatory.12

Brown nevertheless cites the Ninth Circuit’s recent

grant of a petition for rehearing in United States v. Casteneda,

No. 05-10372, 2008 WL 126641 (9th Cir. Jan. 15, 2008), as

support for his argument that his sentence must be vacated

and remanded for the District Court to reconsider his sentence

in light of Kimbrough. Casteneda, however, is clearly

distinguishable. There, the district court, in responding to a

defendant’s request that the court consider the crack/powder

cocaine disparity, stated, “I don’t believe it’s appropriate for

the Court to specifically reduce a sentence under 18 U.S.C. §

3553(a) on the basis that the Congress and the U.S.

Sentencing Commission are wrong in establishing different

penalties for different types of controlled substances.” Id. at

*2. On a petition for rehearing, the Ninth Circuit vacated the

defendant’s sentence and remanded for resentencing because

the district court’s statements reflected that the district court

did not foresee the extension of its Booker

discretion that would be announced two years

later by the Supreme Court in Kimbrough.

Thus, the district court did not feel free to

12

In a letter to the Court, Wise’s counsel agrees with the

government that Wise’s sentence comports with Kimbrough.

See Letter from Wise’s counsel (Dec. 21, 2007). Although

Wise’s earlier-filed brief asserted that the District Court had

erroneously applied the Guidelines in a mandatory fashion,

Wise’s most recent submission indicates that he has retreated

from that argument. Id. (“At the sentencing hearing itself, the

District Court noted it could consider the [crack/powder

cocaine] disparity as a § 3553(a) factor but declined to do

so.”).

29

consider whether “any unwarranted disparity

created by the crack/powder ratio” produced a

sentence “‘greater than necessary’ to achieve §

3553(a)'s purposes.” [Kimbrough, 128 S. Ct.] at

574-75.

Id.

In contrast to the district court’s comments in

Casteneda, the District Court’s remarks in this case indicate

that it understood that it could consider the crack/powder

cocaine disparity as part of its consideration of the § 3553(a)

factors. Moreover, as noted above, the District Court in this

case had the benefit of this Court’s decision in Gunter, which,

consistent with the Supreme Court’s decision in Kimbrough,

held that a district court may impose a sentence below the

applicable Guidelines range because the Guidelines for crack

offenses are no more mandatory than the Guidelines for any

other offense.

3. Substantive Reasonableness

Because the District Court’s sentencing decisions were

procedurally sound, we next consider, under an abuse-of-

discretion standard, the substantive reasonableness of the

sentences imposed. Gall, 128 S. Ct. at 597. Brown argues

that the District Court abused its discretion in sentencing him

because it “failed to grant a sufficient variance from the

Guidelines based on the crack/powder differential.” (Brown

Br. at 40.)

We do not agree. The District Court’s decision was a

result of its reasonable conclusion that, upon consideration of

the § 3553(a) factors and even taking the crack/powder

cocaine disparity into account, a sentence of 324 months is

30

justified. Although the Court considered that the Guideline

range was “much, much higher than it would be had [Brown]

been dealing powder cocaine,” which might potentially

justify a lower sentence, it also considered that the “nature

and circumstances of the offense,” § 3553(a)(1), were

“probably the most serious of all the drug cases [it had]

heard.” (Brown App. at 790-91.) In addition, in the context

of considering Brown’s “history and characteristics,” §

3553(a)(1), the Court noted that Brown had a history of drug

trafficking. (Brown App. at 790.) While the Court believed

a high sentence was “necessary to reflect the seriousness of

the offense, to promote respect for the law, and to deter

[Brown] and to protect the public from his future conduct,”

see § 3553(a)(2), in the end, it concluded that a sentence in

the middle of the Guidelines range was appropriate in light of

all of the § 3553(a) factors. (Brown App. at 790-91.)

“Giving due respect to the District Court’s reasoned

appraisal,” Kimbrough, 128 S. Ct. at 576, as we must, we

cannot say that the sentence Brown received amounted to an

abuse of discretion.

Wise does not challenge the substantive reasonableness

of his sentence on appeal. Because we can discern no

procedural or substantive error related to Wise’s sentence, we

will affirm his sentence as well.

III. Conclusion

Accordingly, for the reasons set forth above, we will

affirm the District Court’s judgments of conviction and

sentence.

31