Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2008

USA v. Barbour
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4299




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Recommended Citation
"USA v. Barbour" (2008). 2008 Decisions. Paper 680.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/680


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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 05-4299
                                    _____________

                           UNITED STATES OF AMERICA

                                             v.

                                   OTTO BARBOUR,
                                        Appellant

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                 (No. 00-cr-00419-7)
                           Honorable Eduardo C. Robreno

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 21, 2008

               Before: MCKEE, FUENTES and JORDAN, Circuit Judges

                               (Filed   August 12, 2008 )

                              OPINION OF THE COURT

MCKEE, Circuit Judge

      Otto Barbour appeals the sentence that was imposed following remand after his

pro se writ of certiorari was granted by the United States Supreme Court. For the reasons

that follow, we will affirm the 187 month sentence that was imposed on remand.

      We need not set forth the procedural or factual history of this case as we are

writing primarily for the parties who are familiar with that background. We note only that
Barbour challenges the reasonableness of the sentence that was imposed following

remand. He argues that the 187 month sentence was “unreasonably high in light of the

fact (1) he was not convicted of participating in any drug conspiracy and (2) he played a

limited role in the offense. . .”. App. Br. 2.

       18 U.S.C. § 3553(a) sets forth numerous factors which the district court must

consider in fashioning an appropriate sentence. One of those factors, and only one, is the

appropriate guideline range. See 18 U.S.C. § 3553(a)(4). Here, the district court

calculated a quantity of drugs involved in Barbour’s conduct based upon the duration of

his participation in the distribution scheme. That calculation is not challenged on appeal.

During the re-sentencing, the district court specifically stated its understanding that the

applicable Guideline range was merely advisory and that the court was not required to

impose a sentence within that range. The court expressed its sympathy toward

defendant’s arguments but nevertheless explained that Barbour’s illegal conduct was

serious and that a sentence needed to be imposed which was consistent with the

seriousness of the offense. See App. 23. Finally, and more significantly, the court

stressed that Barbour’s distribution “affected the housing area of the city . . . and many of

the residents of that area . . .”. App. 28. We also note that some of the distributions

included in the instant indictment occurred soon after Barbour was released from jail.

The fact that he resorted to distributing cocaine upon release from jail is certainly relevant

to the likelihood of his recidivism and undermines his argument that he is not likely to

commit further crimes because of his age. We believe the district court adequately
considered the various sentencing factors set forth in § 3553(a), and explained why that

sentence is appropriate.

       Accordingly we conclude that the 187 month sentence that was imposed on

remand was reasonable.