Filed: Sep. 20, 2012
Latest Update: Feb. 12, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-3108 _ UNITED STATES OF AMERICA v. MIRSAD KOLASINAC, also known as MIKI, Mirsad Kolasinac, Appellant _ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-09-cr-00307-001) District Judge: Honorable Jose L. Linares _ Submitted Under Third Circuit LAR 34.1(a) September 18, 2012 Before: SLOVITER, RENDELL, and HARDIMAN, Circuit Judges (Filed: September 20, 2012) _ OPINION _ SLOVITER
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-3108 _ UNITED STATES OF AMERICA v. MIRSAD KOLASINAC, also known as MIKI, Mirsad Kolasinac, Appellant _ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-09-cr-00307-001) District Judge: Honorable Jose L. Linares _ Submitted Under Third Circuit LAR 34.1(a) September 18, 2012 Before: SLOVITER, RENDELL, and HARDIMAN, Circuit Judges (Filed: September 20, 2012) _ OPINION _ SLOVITER,..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
________
No. 11-3108
_________
UNITED STATES OF AMERICA
v.
MIRSAD KOLASINAC,
also known as MIKI,
Mirsad Kolasinac,
Appellant
________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-09-cr-00307-001)
District Judge: Honorable Jose L. Linares
_______
Submitted Under Third Circuit LAR 34.1(a)
September 18, 2012
Before: SLOVITER, RENDELL, and HARDIMAN, Circuit Judges
(Filed: September 20, 2012)
______
OPINION
______
SLOVITER, Circuit Judge.
Mirsad Kolasinac appeals his 262 month sentence for possession with intent to
distribute methamphetamine. He argues that the District Court committed procedural
error by not properly considering his arguments for granting a variance from the
guideline range. We will affirm.1
I.
The Federal Bureau of Investigation, Immigration and Customs Enforcement, and
the Bureau of Alcohol, Tobacco, Firearms and Explosives conducted a joint investigation
into Balkan criminal enterprises. The investigation used undercover officers to infiltrate
criminal activities, particularly the trafficking of drugs, weapons, and other contraband.
Mirsad Kolasinac is a naturalized United States citizen originally from Serbia. At
the time of his arrest, he worked as the superintendent of an apartment building and
operated a coffee shop in New Jersey. Kolasinac met two undercover agents during the
investigation. At one meeting in June 2008, Kolasinac gave one of the undercover agents
a gun and offered to assist in any type of “violent act” the recipient needed to have done.
Pre-Sentence Report at 7. In July of the same year, Kolasinac and his cohort, Rasim
Corhamzic, sold 5,100 pills of ecstasy to an undercover agent for $21,480. At the same
meeting, Kolasinac paid the undercover agent $2,500 for contraband cigarettes. In
August 2008, Kolasinac and Corhamzic again sold the undercover agent what they
1
The District Court had jurisdiction under 18 U.S.C. § 3231. This court has
jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
2
believed was ecstasy and Oxycontin for $65,620. Subsequent chemical analysis showed
that some of the purported ecstasy pills in fact contained methamphetamine
hydrochloride. Corhamzic had smuggled the drugs into the United States from Canada
by noncommercial airplane.
Kolasinac was indicted on five counts: (1) from January 2008 through March 14,
2009, conspiracy to distribute and to possess with intent to distribute controlled
substances including methamphetamine and ecstasy; (2) from January 2008 through
March 14, 2009, conspiracy to import controlled substances including methamphetamine
and ecstasy from Canada to New Jersey; (3) possession with intent to distribute
methamphetamine on July 14, 2008; (4) possession with intent to distribute
methamphetamine from August 18-19, 2008; and (5) possession with intent to distribute
ecstasy on July 14, 2008. Kolasinac entered into a plea agreement and pled guilty to
Count Four of the indictment.
Kolasinac’s base offense level was determined to be 38. Three separate two-level
enhancements were applied for possessing a firearm during the offense, unlawfully
importing a controlled substance on a noncommercial aircraft, and importing
methamphetamine. A three-level reduction was granted for acceptance of responsibility
resulting in a total offense level of 41.
Kolasinac sought a variance based on his ignorance that the drugs were
methamphetamine, his self-proclaimed minor role in the conspiracy, and the 18 U.S.C. §
3553(a) factors. The District Court denied his requests. It first noted that the non-
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mandatory guideline range was properly calculated. It then stated that Kolasinac’s
offense was very serious and required deterrence regardless of his ignorance about the
product. The District Court also noted that the nature and quantity of drugs and the
nature and extent of the conspiracy required a serious sentence. It further stated that
Kolasinac played more than a minor role in the transaction and conspiracy. While
accepting that some of Kolasinac’s statements at sentencing mitigated towards a sentence
at the bottom of the range, the District Court ultimately declared that the facts of the case
did not warrant a variance below the mandatory minimum.
The District Court subsequently sentenced Kolasinac to 324 months
imprisonment, on the low end of his guideline range. However, after the two-level
increase for importation of methamphetamine was found inapplicable, resulting in a
lower guideline range of 262-327 months, Kolasinac’s sentence was reduced to 262
months. Kolasinac appeals, claiming that the District Court committed procedural error
by, inter alia, not meaningfully considering his request for a downward variance from the
mandatory minimum based on his belief that some of the drugs were ecstasy rather than
methamphetamine.
II.
We review the reasonableness of a sentence under an abuse of discretion standard.
See United States v. Merced,
603 F.3d 203, 214 (3d Cir. 2010). This is a two stage
process. See
id. First, we determine whether the district court committed any significant
procedural error. See
id. If the district court’s procedures are sound, we next examine
4
the substantive reasonableness of the sentence. See
id. We will affirm unless no
reasonable sentencing court would impose the same sentence for the reasons provided by
the district court. See
id.
Procedural error occurs when the district court fails to calculate (or improperly
calculates) the guideline range, treats the guideline range as mandatory, fails to consider
the § 3553(a) factors, chooses a sentence based on clearly erroneous facts, or fails to
adequately explain the sentence. See
id. When determining a sentence, the record need
only reflect that the district court meaningfully considered the § 3553(a) factors and any
other arguably meritorious arguments raised by the defendant. See United States v.
Cooper,
437 F.3d 324, 329 (3d Cir. 2006), abrogated on other grounds by Kimbrough v.
United States,
552 U.S. 85 (2007).
Section 3553(a) provides that when determining a sentence the court should
consider: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed; (3) the kinds of
sentences available; (4) the kinds of sentence and the sentencing range established; (5)
pertinent policy statements issued by the Sentencing Commission; (6) the need to avoid
unwarranted sentence disparities between similar defendants; and (7) the need to provide
restitution to victims of the offense. 18 U.S.C § 3553(a). We have stated that meaningful
consideration does not require a discussion and findings on each factor as long as it is
clear that the relevant factors were taken into account. See
Cooper, 437 F.3d at 329.
5
Moreover, the Supreme Court has held that when a matter is conceptually simple and the
record makes clear the sentencing judge considered the evidence and arguments, a brief
explanation of the reasons for the sentence is all the law requires. See Rita v. United
States,
551 U.S. 338, 359 (2007).
In the case before us, the District Court’s reasoning is sufficient to show that it
meaningfully considered all relevant factors as well as the nonfrivolous arguments made
by defendant before sentencing. Kolasinac’s primary contention on appeal is that his
ignorance that the drugs were methamphetamine should have resulted in a downward
variance. The District Court rejected this argument, noting that there was no basis to rule
that the defendant’s ignorance should negate the fact that the pills turned out to contain
methamphetamines, rather than ecstasy, and that methamphetamines are extremely
dangerous to the public.
The District Court also rejected Kolasinac’s argument that he played only a minor
role in the conspiracy. It stated that in light of Kolasinac’s participation in the
transaction, his help negotiating, his knowledge of the transaction and smuggling
operation, and the use of a non-commercial airplane to smuggle drugs, his participation
was not minor. The District Court did recognize that some of Kolasinac’s statements at
the sentencing hearing warranted a sentence on the lower end of the guideline range but
ultimately found that the facts of the case did not warrant a sentence below the guideline
range. Although the District Court’s discussion of Kolasinac’s arguments was brief, it
clearly considered those arguments.
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III.
Because the District Court did not commit procedural error when it sentenced
Kolasinac, we will affirm the judgment of sentence.
7