Filed: Mar. 27, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-27-2008 USA v. Wyche Precedential or Non-Precedential: Non-Precedential Docket No. 06-5114 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Wyche" (2008). 2008 Decisions. Paper 1378. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1378 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-27-2008 USA v. Wyche Precedential or Non-Precedential: Non-Precedential Docket No. 06-5114 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Wyche" (2008). 2008 Decisions. Paper 1378. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1378 This decision is brought to you for free and open access by the Opinions of the United States ..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-27-2008
USA v. Wyche
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5114
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Wyche" (2008). 2008 Decisions. Paper 1378.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1378
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________________
No. 06-5114
UNITED STATES OF AMERICA
v.
THEODORE W. WYCHE, JR.
Appellant
__________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 06-cr-00126-1)
District Judge Sylvia H. Rambo
__________________
Submitted under Third Circuit LAR 34.1 (a)
February 7, 2008
Before: MCKEE and AMBRO, Circuit Judges
and TUCKER, District Judge1*
(Opinion filed: March 27, 2008)
__________________
OPINION
__________________
TUCKER, District Judge
* Honorable Petrese B. Tucker, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Theodore W. Wyche, Jr. appeals the guideline sentence of 87 months’ incarceration
imposed by United States District Judge Sylvia H. Rambo (“the District Court”). The issue
before this Court is the District Court’s interpretation and application of United States v. Gunter,
462 F.3d 237 (3d Cir. 2006), relating to the 100:1 crack/powder cocaine ratio. For the reasons
set forth below, we affirm.
I.
The pertinent facts are as follows. Over a two-week period, between January and
February 2006, Wyche negotiated and sold 95 grams of crack cocaine to federal investigators in a
total of four controlled transactions. On April 5, 2006, Wyche, his older sister, and her boyfriend
were charged with conspiracy to distribute more than 50 grams of crack cocaine in violation of
21 U.S.C. §§ 841, 846.
The Presentence Report (“PSR”) determined that Wyche’s base offense level was 32.
The report added a two-point enhancement for Wyche’s leadership role, pursuant to U.S.S.G. §
3B1.1 (c), and three points were subtracted for acceptance of responsibility, pursuant to U.S.S.G.
§ 3E1.1(a) and (b). The total offense level was set at 31 with a Criminal History Category of I;
thus setting the Sentencing Guidelines range at 108 to 135 months.
Both Wyche and the government filed objections to the PSR. The parties reached an
agreement whereby the government would not present evidence in support of the leadership
enhancement (a two-level enhancement) and Wyche would not seek a safety valve downward
departure (a two-level reduction) pursuant U.S.S.G. § 5C1.2(a)(5). The District Court
consequently omitted the two-point leadership enhancement. The adjusted level was 29, and
with a Criminal History Category of I the Guideline range was 87-108 months.
During the sentencing hearing, in addition to revealing the parties’ agreement, Wyche
argued that a sentence outside the Guidelines range would be appropriate in light of Gunter,
which addressed the 100:1 crack to powder ratio. 462 F.3d 237. The District Court sentenced
Wyche to 87 months’ incarceration, explaining that its sentence was at the low end of the
Guideline range for the following reasons:
1) Within the a two-week period, investigators bought approximately 95 grams of crack
cocaine from Wyche during four controlled buys;
2) Wyche has a criminal history not reflected in his criminal history category, including a
criminal adjudication for delivery of cocaine and possession with intent to deliver cocaine
and five driving under suspension convictions;
3) Failure to consider that Wyche’s criminal history would effectively treat him the same
as a similarly situated defendant with no prior contact with the law;
4) Wyche’s prior criminal history raises the likelihood of recidivism;
5) Wyche had a somewhat difficult childhood;
6) Wyche benefitted greatly by the plea agreement; and
7) The Court considered “the ratio between crack and powder cocaine as a basis for
sentencing at the low end of the guideline range.”
On appeal, Wyche argues that his sentence should be vacated and remanded for
resentencing. In sum, Wyche argues that his sentence does not meet the reasonableness
standards required by United States v. Booker, 543 U.S. 220, 226-62 (2005). While Wyche
concedes that the sentence is at the low end of the applicable guideline range, he contends that
where the sentence incorporates the crack cocaine Guideline, it is unreasonable. According to
Wyche, the Court’s decision in Gunter and reports prepared by the United States Sentencing
Commission explain that the 100:1 crack/powder cocaine ratio fails to meet sentencing
objectives of 18 U.S.C § 3553(a). Wyche contends the record does not clearly indicate that the
District Court understood and reasonably discharged its obligation to consider all relevant section
3553(a) factors in imposing its sentence.
Applying a deferential standard, this Court will review the sentence by the District Court
for reasonableness pursuant to 28 U.S.C. § 3742(a)(1). United States v. Cooper, 437 F.3d 324,
327 (3d Cir. 2006).
The District Court properly applied the three-step process set forth by this Court in
Gunter and properly exercised its sentencing discretion. 462 F.3d 237. In Gunter, this Court
explained two types of Booker errors: 1) reliance upon judge-found facts, other than prior
convictions to enhance the defendant’s sentence beyond the statutory minimum, commonly
referred to as “constitutional error”; and 2) application of the Guidelines mandatorily, commonly
referred to as “non-constitutional error.”
Gunter, 462 F.3d at 247. In the interests of avoiding
these errors, this Court instructed district courts to follow a three-step sentencing process:
(1) Courts must continue to calculate a defendant’s Guidelines sentence precisely
as they would have before Booker.
(2) In doing so, district courts 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.”
(3) Finally, district courts are required to “exercise[] [their] discretion by
considering the relevant [§ 3553(a)] factors” in setting a sentence regardless
whether it varies from the sentence calculated under the Guidelines.
Id. at 247 (citations omitted).
“Post-Booker, a sentencing court errs when it believes that it has no discretion to consider
the crack/powder cocaine differential incorporated in the Guidelines—but not demanded by 21
U.S.C. § 841(b)—as simply advisory at step three of the post-Booker sentencing process
(imposing the actual sentence after considering the relevant § 3553(a) factors). . . . .” Id. at 249.
Here, no such error occurred.
The District Court specifically stated its consideration of the disparity between crack and
powder as a basis for sentencing on the low end of the Guidelines. However, it is under “no
obligation to impose a sentence below the Guidelines solely on the basis of the crack/powder
cocaine differential.” Id. Further, contrary to Wyche’s suggestion, the District Court is not
required to “categorically reject” the 100:1 ratio.
The record reflects that the District Court considered all relevant § 3553(a) factors.
Accordingly, we affirm.
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