NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 09-3751


                       UNITED STATES OF AMERICA

                                       v.

                          RICARDO WASHINGTON,
                                          Appellant



                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                    (D.C. Criminal No. 1-08-cr-00380-001)
                      District Judge: Hon. Sylvia H. Rambo


                Submitted Pursuant to Third Circuit LAR 34.1(a)
                                April 13, 2010

          BEFORE: FISHER, HARDIMAN and COWEN, Circuit Judges

                             (Filed: April 16, 2010)



                                   OPINION




COWEN, Circuit Judge
       Ricardo Washington appeals the judgment of the District Court sentencing him to

a 168-month term of imprisonment. Washington contends that the sentence is

substantively unreasonable as (1) the District Court’s designation of Washington as a

career offender significantly overstated his criminal history and (2) the District Court

failed to properly exercise its discretion with respect to the crack cocaine-powder cocaine

disparity, in light of the current trend toward eliminating the disparity. We will affirm.

I.     BACKGROUND

       Washington pleaded guilty to one count of possession with intent to distribute five

grams or more of cocaine base in violation of 21 U.S.C. § 841(a) and one count of

possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The pre-

sentence investigation report (“PSR”) indicated that Washington had four prior adult

convictions, which qualified him as a career offender under U.S.S.G. § 4B1.1. The PSR

determined that his offense level was 31 and his criminal history category (due to his

status as a career offender) was VI, leading to a Guidelines range of 188 to 235 months.

       At the sentencing hearing, Washington objected to the Guidelines range,

contending that he was entitled to a downward departure pursuant to U.S.S.G.

§§ 4A1.3(b)(1) and 5K2.0 on the ground that his criminal history category greatly

overstated the seriousness of his criminal history. The District Court denied his request

explaining that his designation as a career offender was justified as two of his four prior

convictions involved narcotics trafficking, one of which involved a firearm. Washington


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also requested a variance from the Guidelines based on various § 3553(a) factors,

including the disparity between crack cocaine and powder cocaine Guidelines. The

District Court imposed a term of imprisonment of 168 months, which reflected a twenty-

month variance below the crack cocaine Guidelines.

II.    STANDARD OF REVIEW

       This Court reviews the procedural and substantive reasonableness of a district

court’s sentence for abuse of discretion. See United States v. Levinson, 

,

195 (3d Cir. 2008). We review a sentence for substantive reasonableness to determine

“whether the final sentence, wherever it may lie within the permissible statutory range,

was premised upon appropriate and judicious consideration of the relevant factors.”

United States v. Schweitzer, 

, 204 (3d Cir. 2006).

III.   DISCUSSION

       After United States v. Booker, 

(2005), district courts adhere to a

three-step process when sentencing defendants. First, they must “calculate a defendant’s

Guidelines sentence precisely as they would have before Booker.” United States v.

Gunter, 

, 247 (3d Cir. 2006) (citing United States v. King, 

,

196 (3d Cir. 2006)). Second, they must “formally rul[e] on the motions of both parties

and stat[e] on the record whether they are granting a departure and how that departure

affects the Guidelines calculation, and tak[e] into account [our] Circuit’s pre-Booker case

law, which continues to have advisory force.” 

are required to ‘exercise


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[] [their] discretion by considering the relevant [§ 3553(a) factors’] in setting the

sentence they impose regardless whether it varies from the sentence calculated under the

Guidelines.” 

omitted).

       Washington challenges the District Court’s determinations as to the second and

third steps. First, Washington contends that the District Court erred in denying his

request for a downward departure. He concedes that under the Guidelines he qualifies as

a career offender; however, he contends that due to his young age at the time of his first

two convictions (ages 18 and 19), and the small amount of cocaine found on him at the

time of his third arrest, he is not the type of individual the Sentencing Commission

sought to target with career offender status. In short, he contends that the Sentencing

Commission did not intend to target low-level drug dealers, such as himself, with career

offender status.

       The record indicates that Washington’s first arrest occurred when he was 18. He

was sentenced to five months incarceration for narcotics trafficking with a firearm. Less

than one year later, while on parole, Washington was arrested for possession of a firearm,

escape, and resisting arrest. Two years after he was released from prison, he was arrested

for narcotics trafficking. Within seven months of his release from prison for that

conviction, he was arrested for the instant offense. This criminal history reflects

recidivist tendencies with respect to narcotics trafficking and firearms possession, both of

which the Sentencing Commission sought to target with the career offender Guideline.


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The District Court’s denial of his request for a downward departure was not

unreasonable as the record supports his designation as a career offender.

       Second, Washington contends that the District Court erred in not granting a

greater variance based on the current movement toward eliminating the crack cocaine

and powder cocaine sentencing disparity. Washington points to the Department of

Justice’s stated position in favor of eliminating the disparity. See Restoring Fairness to

Federal Sentencing: Addressing the Crack-Powder Disparity, Hearing before the

Subcomm. on Crime and Drugs of the S. Comm. on the Judiciary, 111th Cong. (2009)

(testimony of Lanny A. Breuer, Assistant Attorney General, Criminal Division, United

States Department of Justice), available at http:judiciary.senate.gov/pdf/09-04-

29BreuerTestimony.pdf. Additionally, since the parties filed the instant appeal, the

United States Senate unanimously passed a bill decreasing the sentencing disparity from

100:1 to 20:1. See Fair Sentencing Act of 2010, S. 1789, 111th Cong. (2010). Similar

legislation is pending before the House of Representatives.

       In granting a 20-month variance, the District Court explained that Washington’s

prior record did not justify any greater variance. The District Court’s decision was not

unreasonable as it is supported by the record. Further, until legislation is enacted

regarding the crack-powder disparity, this Court will not disturb sentences imposed

within the current sentencing law.




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IV.   CONCLUSION

      For the reasons set forth above, we will affirm the judgment of the District Court.




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