Filed: Nov. 26, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 11-26-2008 USA v. Bonner Precedential or Non-Precedential: Non-Precedential Docket No. 07-3763 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Bonner" (2008). 2008 Decisions. Paper 191. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/191 This decision is brought to you for free and open access by the Opinions of the United State
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 11-26-2008 USA v. Bonner Precedential or Non-Precedential: Non-Precedential Docket No. 07-3763 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Bonner" (2008). 2008 Decisions. Paper 191. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/191 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
11-26-2008
USA v. Bonner
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3763
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Bonner" (2008). 2008 Decisions. Paper 191.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/191
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NOT PRECEDENTIAL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. 07-3763
____________
UNITED STATES OF AMERICA
v.
JERMANE E. BONNER,
Appellant
_
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 02-cr-00046-1)
District Judge: Honorable Gary L. Lancaster
____________
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2008
Before: SCIRICA, Chief Judge, FUENTES and HARDIMAN , Circuit Judges.
(Filed: November 26, 2008)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Jermane Bonner appeals his 180-month sentence following a guilty plea. We will
affirm in part and remand in part.
I.
Because we write exclusively for the parties, we recount only those facts necessary
to our decision.
Bonner pleaded guilty to one count of possession with intent to distribute 50 grams
or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). The
presentence investigation report (PSR) classified Bonner as a career offender based upon
prior convictions for third degree murder, two counts of aggravated assault, and two
counts of reckless endangerment. See United States Sentencing Guidelines Manual
(USSG) § 4B1.1. This resulted in a total offense level of 34, a criminal history category
of VI, and an advisory Guidelines range of 262 to 327 months.
Bonner objected to the PSR and moved for a downward departure based on an
overstatement of his criminal history under United States v. Shoupe, 988 F.2d 440 (3d
Cir. 1993). He also sought a variance under 18 U.S.C. § 3553(a) based on the
Guidelines’ 100:1 powder-to-crack ratio. Finding that he was more akin to a low-level
dealer than a drug kingpin, the District Court granted Bonner a substantial downward
variance and imposed a sentence of 180 months imprisonment.
II.
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We exercise appellate jurisdiction over Bonner’s claims of sentencing error under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324,
327-28 (3d Cir. 2006). We review Bonner’s sentence for reasonableness. See United
States v. Sevilla, No. 07-1105,
2008 WL 4069453, at *2-3 (3d Cir. Sept. 4, 2008).
A.
Bonner first argues that the District Court erred by failing to follow the three-step
procedure outlined in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). Although
Bonner was sentenced nearly a year before we decided Gunter, the District Court
followed appropriate procedures in imposing Bonner’s sentence.
First, it is undisputed that the District Court accurately calculated Bonner’s
advisory Guidelines range (Gunter step one). 462 F.3d at 247. Second, the District Court
ruled on Bonner’s motion for downward departure pursuant to USSG § 4A1.3 when it
rejected his argument that his criminal history was overstated (Gunter step two).1
Id. The
District Court noted that Bonner violated the law repeatedly and committed the offense in
question while on state parole. The District Court also reasoned that any reduction in
Bonner’s criminal activity as an adult could be attributed to the fact that he had been
incarcerated for nine of fifteen years since reaching the age of majority. Finally, the
District Court considered Bonner’s request for a variance in methodical detail (Gunter
1
Although not challenged on appeal, it is clear that the District Court properly
denied Bonner’s motion for a downward departure because he is a career offender.
3
step 3). In addressing almost all of the § 3553(a) factors, the District Court reviewed: the
nature and circumstances of the offense; the history and characteristics of the defendant;
the need for the sentence imposed to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; the need for the
sentence imposed to afford adequate deterrence to criminal conduct; the need for the
sentence imposed to protect the public from further crimes of the defendant; the need for
the sentence imposed to provide the defendant with needed educational and vocational
training; the kinds of sentences available; and the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct. See 18 U.S.C. § 3553(a).
With regard to the last factor, the Court acknowledged that if Bonner were
sentenced within his Guidelines range, it would create a disparity in sentencing. The
Court explained that the “harsh sentences” called for by the Guidelines were intended by
the Sentencing Commission to apply to major drug dealers, not low level dealers like
Bonner. Accordingly, the District Court granted Bonner’s request for a variance and
imposed a sentence of 180 months, 82 months below the bottom of his Guidelines range.
B.
Despite the District Court’s substantial downward variance, Bonner claims that the
Court erred by failing to consider the 100:1 crack-to-powder ratio that was recently
addressed by the Supreme Court in Kimbrough v. United States, 128 S. Ct. 558, 563
4
(2007). Although the District Court’s substantial downward departure may have been
influenced by concerns over the crack/powder disparity at the time Bonner’s sentence was
imposed, we will vacate the judgment and remand the case in order to give the District
Court the opportunity to resentence Bonner in light of Kimbrough.
In doing so, it is important to note that Bonner’s Guidelines range was correctly
calculated based on his career offender status, not by his possession with intent to
distribute crack cocaine. The range of 262 to 327 months was calculated under the career
offender section of the Guidelines, USSG § 4B1.1, not under USSG § 2D1.1(c), which
concerns drug quantities. However, the Government acknowledges that if Bonner had
been guilty of an offense involving powder cocaine instead of crack cocaine, he would
have been in a different Guidelines range, even if he were still considered a career
offender. The Government argues that since Bonner’s final sentence was below the
bottom end of where his Guidelines range would have been had he been found to be a
career offender in possession of powder cocaine, no Kimbrough remand is necessary. We
disagree.
The Government argues that the trial judge granted this substantial variance under
§ 3353(a) because of the reasons articulated in Kimbrough, specifically the crack/powder
disparity. We are not so sure. The Court noted that the “harsh sentences” called for by
the Guidelines were intended by the Sentencing Commission to apply to major drug
dealers, not low-level dealers, and acknowledged that a disparity would result if Bonner
5
were sentenced within the Guidelines. This may have been a signal that the District Court
took the crack/powder disparity into account, but the record is unclear on this point.
We recognize that the District Court granted a substantial downward variance. It
is possible that inherent in this substantial downward variance was a concern over the
crack/powder disparity. However, because that reasoning was not explicit, we will
remand in order to give the District Court the opportunity to take account of Kimbrough
and Amendment 706 to the Sentencing Guidelines. The District Court may exercise its
discretion to impose the same sentence, or a lesser sentence, subject to our review for
procedural and substantive reasonableness.
III.
We note that although Bonner was sentenced before our ruling in Gunter, the
District Court very capably anticipated the substance of that precedent and sentenced
Bonner in conformance therewith. For the reasons stated herein, however, we will vacate
the judgment of the District Court and remand for a new sentencing hearing consistent
with this opinion.
6
