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Precedential or Non-Precedential: Precedential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, 

(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, 

, 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.” 

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, 

, 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, 

, 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, 

, 40 (1st Cir. 1999); United
States v. Morin, 

, 1353-54 (11th Cir. 1994);
United States v. Correa-Ventura, 

, 1082-87 (5th
Cir. 1993); cf. Richardson v. United States, 

, 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, 

, 597 (3d Cir. 1989),
overruled on other grounds by United States v. Price, 

, 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, 

, 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, 

, 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, 

, 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, 

(2005), the
Supreme Court held that the Sentencing Guidelines are
advisory only. Recently, in Gall v. United States, 

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.

(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, 

, 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, 

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

, 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 

; see also

. 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.” 

(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. 

; 

.

        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.” 

. We review the
district court’s decision under an abuse-of-discretion standard,

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, 

, at *3 (10th Cir. Dec. 18,
2007); see also Koon v. United States, 

, 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., 

, 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. 

;
see also United States v. Grier, 

, 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 

.

       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.” 

; cf. 

(“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.”); 

(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. 

. 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, 

, 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. 

. Instead, we continue to
recognize that “‘reasonableness is a range, not a point.’”

n. 11 (quoting United States v.
Cunningham, 

, 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, 

, 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., 

, 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, 

(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. 

.
        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. 

-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, 

, 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, 

, 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. 

. 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, 

, 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. 

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. 

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, 

, 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 

(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, 

(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. 

The Court made clear that the
Guidelines ranges for crack cocaine offenses, like all of the
other Guidelines ranges, are advisory only. 

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 ... .” 

       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 

. 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).” 

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. 

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, 

(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.” 

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. 

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.

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. 

. 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,” 

, 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