NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                              No. 08-2930




                   UNITED STATES OF AMERICA

                                     v.

                          GERALD GREGG,
                                   Appellant




             On Appeal from the United States District Court
                 for the Middle District of Pennsylvania
                      (D.C. No. 3-07-cr-00333-001)
               District Judge: Honorable Edwin M. Kosik




               Submitted Under Third Circuit LAR 34.1(a)
                            April 15, 2010

      Before: SLOVITER and HARDIMAN, Circuit Judges,
                 and POLLAK * , District Judge

                         (Filed : April 21, 2010)


                               OPINION
                                ______



         *
          Hon. Louis H. Pollak, Senior Judge, United States District
  Court for the Eastern District of Pennsylvania, sitting by
  designation.
SLOVITER, Circuit Judge.

                                            I.

       Appellant Gerald Gregg (“Gregg”) pled guilty to possession of heroin with intent

to distribute in violation of 21 U.S.C. § 841(a)(1). On appeal, Gregg argues that the

District Court failed to consider adequately his motions for a downward departure and

variance and imposed an unreasonable sentence. We will affirm.

       Gregg was arrested after making two sales of heroin to a government witness.

Gregg pled guilty to count one of a two-count indictment. According to the Presentence

Report (“PSR”), Gregg was a career offender with a total offense level of 29 and a

criminal history category of VI, resulting in a Guidelines imprisonment range of 151 to

188 months.

       At sentencing, Gregg moved for a downward departure and variance. In support,

Gregg argued that his crimes resulted from his drug addiction and troubled childhood.

Gregg also pointed to a fourteen-month period during which he did not commit any

crimes, and twenty-four hours of drug and alcohol education that he completed. In

addition, Gregg argued that the Guidelines sentence was inappropriate given the amount

of heroin he sold. The Court sentenced Gregg to 151 months imprisonment and three

years supervised release.

                                            II.

       We first review a sentencing court’s decision for serious procedural error and then



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review the substantive reasonableness of the sentence for abuse of discretion. United

States v. Lopez-Reyes, 

, 670 (3d Cir. 2009).1

                                            III.

       Under the Guidelines, a sentencing court may depart downward one criminal

history category if the defendant’s career offender status “substantially over-represents

the seriousness of [his] criminal history or the likelihood that [he] will commit other

crimes.” U.S.S.G. § 4A1.3(b)(1). This court cannot review a sentencing court’s refusal

to grant a downward departure “unless the record reflects that the district court was not

aware of or did not understand its discretion to make such a departure.” United States v.

Grier, 

, 141 (3d Cir. 2009) (quoting United States v. Puckett, 

,

344-45 (6th Cir. 2005)).

       Although the District Court did not expressly deny the motion for downward

departure when it imposed a Guidelines sentence, both Gregg and the Government

informed the District Court of its discretion to depart. We have held that in limited

circumstances, we may infer that a sentencing court exercised its discretion not to depart.

United States v. Lofink, 

, 239 (3d Cir. 2009). Gregg argued that a departure

was warranted based on his history of drug addiction. Yet the Guidelines explicitly state

that “[d]rug or alcohol dependence or abuse is not a reason for a downward departure.”



                   1
                    This court has jurisdiction pursuant to 28 U.S.C. § 1291
            and 18 U.S.C. § 3742.

                                             3
U.S.S.G. § 5H1.4. Gregg had five prior felony drug convictions and twenty-one criminal

history points, and he committed the instant offense while on parole. Based on these

facts, Gregg’s career offender status did not overrepresent his extensive criminal history

and likelihood of recidivism. Thus, we can infer that the District Court rejected Gregg’s

motion for downward departure.

       Gregg’s argument in support of a variance that the District Court erred by failing

to consider the specific § 3553(a) factors is without merit. We have made clear that the

sentencing court need not make explicit findings with respect to each factor. United

States v. Jackson, 

, 841 (3d Cir. 2006). Instead, the record must simply

demonstrate that all of the factors were taken into account. 

District Court

stated that it “ha[d] to give consideration to the elements that are in . . . [§ 3553(a)].”

App. at 34. The Court referred not only to the “characteristics of the defendant” but also

to the “seriousness of the offense,” the need for deterrence, the “kind of sentences

available,” and the defendant’s history of recidivism. App. at 52-53. We conclude that

the record shows that the District Court adequately considered and denied Gregg’s

motion for a downward variance.

                                              IV.

       Gregg challenges the reasonableness of his sentence. Under the abuse of

discretion standard, sentencing courts have wide latitude in crafting a reasonable

sentence. See United States v. Tomko, 

, 568 (3d Cir. 2009) (en banc) (citing



                                               4
United States v. Bungar, 

, 543 (3d Cir. 2007)). Here, the District Court

explicitly referenced the § 3553(a) factors “to see how they impact in devising a

reasonable sentence that might be different than the [G]uidelines.” App. at 52. Because

the District Court “considered the parties’ arguments and ha[d] a reasoned basis for

exercising [its] legal decisionmaking authority,” Rita v. United States, 

, 356

(2007), we cannot hold that its decision was unreasonable.

                                            V.

       For the foregoing reasons, we will affirm the judgment of sentence entered by the

District Court.




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