NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                      No. 10-1658
                     ____________

            UNITED STATES OF AMERICA

                           v.

                  RASOOL HINTON,
                      a/k/a SU

                     Rasool Hinton,
                                Appellant
                     ____________

APPEAL FROM THE UNITED STATES DISTRICT COURT
       FOR THE DISTRICT OF NEW JERSEY
           (D.C. Crim. No. 08-cr-00445-005)
        District Judge: Honorable Joel A. Pisano
                     ____________

        Submitted Under Third Circuit LAR 34.1(a)
                   November 16, 2010
                     ____________

Before: BARRY, CHAGARES and VANASKIE, Circuit Judges

               (Filed: November 23, 2010 )
                      ____________

                       OPINION
                     ____________
BARRY, Circuit Judge

       After pleading guilty to distributing crack cocaine, Rasool Hinton was sentenced to

seventy months= incarceration, the very bottom of the Guidelines range, and ten months

above the statutory mandatory minimum. Hinton now appeals. We will affirm.

                                      I. Background

       On June 30, 2008, a grand jury returned a nine-defendant, twenty-count indictment

in which Hinton was charged with six narcotics-related counts. On August 10, 2009, he

entered a plea of guilty to Count Eleven: distribution of five grams or more of cocaine

base, in violation of 21 U.S.C. ' 841(a)(1), 21 U.S.C. ' 841(b)(1)(B), and 18 U.S.C. ' 2.

In his plea agreement, he stipulated that his offense and relevant conduct involved

between 35 and 50 grams of cocaine base. Count Eleven carried a statutory mandatory

minimum of five years= incarceration.

       In the Pre-Sentence Report, Hinton=s base offense level was calculated to be 28,

and adjusted for acceptance of responsibility, the total offense level was 25. With a

criminal history category of III, his Guidelines sentencing range was 70 to 87 months. He

did not contest these calculations, but asked the District Court to impose the five-year

mandatory minimum. The Court declined to do so, sentencing him to seventy months.

He appealed.




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                        II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. ' 3231, and we have

appellate jurisdiction pursuant to 18 U.S.C. ' 3742(a) and 28 U.S.C. ' 1291.

       When reviewing a sentence on appeal, we first ensure that the sentencing court did

not commit a serious procedural error, Asuch as failing to calculate (or improperly

calculating) the Guidelines range [or] treating the Guidelines as mandatory.@ Gall v.

United States, 

, 51 (2007). We then Areview the substantive reasonableness of

the sentence under an abuse-of-discretion standard,@ while keeping in mind that A[a]s 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.@ United States v. Wise, 

, 218 (3d Cir. 2008).

                                        III. Analysis

       Hinton argues that the District Court erred in (1) treating the Guidelines as

mandatory or presumptively reasonable, (2) failing to sufficiently consider his personal

history and characteristics, and (3) imposing a substantively unreasonable sentence. His

arguments are without merit.

         A. Treating the Guidelines as Mandatory or Presumptively Reasonable

       Hinton argues, first, that the District Court erred in treating the Guidelines as either

mandatory or presumptively reasonable. At sentencing, the Court was explicit about the

role of the Guidelines in its sentencing determination:


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       First of all, before we go any further, lest there be any confusion about this,
       I recognize I do have the discretion to engage in departures, variances, and
       adjustments. . . .

       Therefore, I state for the record that I do understand and recognize the
       Court does have the discretion to engage in a departure based on a
       traditional guidelines theory, such as the overstatement of one=s criminal
       history, or under a more traditional approach where we would call it a
       variance or an adjustment based upon certain facts in the case.

       With respect to the . . . argument made by counsel that I ought to do
       something about the debate over the disparity in sentencing between
       powder cocaine and crack cocaine, the fact of the matter is that unless and
       until the guidelines change and unless and until the statutes change, the law
       has to be taken as we find it. Particularly where one takes into account the
       fact that we have a five-year mandatory minimum, that I feel I do not have
       the discretion to go below absent the 5K1 type letter from the Government,
       I=m constrained to use that as the starting point.

       Insofar as there is among professionals and academics a debate, good faith
       debate over the methodology in approaching sentencing for crack cocaine,
       unless as I say, unless and until that is changed, in statute or in the
       Guidelines, I choose not to exercise any discretion with respect to it.

(App. 83-84.)

       Hinton focuses on the District Court=s statement that Athe law has to be taken as we

find it@ to argue that the Court improperly treated the Guidelines as mandatory or

presumptively reasonable. That is simply not so. For one thing, the record is abundantly

clear that the Court understood that the Guidelines were not mandatory. As it correctly

stated, AI do have the discretion to engage in departures, variances, and adjustments.@ It

also made clear that it was Achoos[ing]@ not to exercise its discretion to impose a below-

Guidelines sentence. Thus, A[r]ead as whole, the Court=s remarks at sentencing show that


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it understood that it could sentence [Hinton] outside the Guidelines range but chose not

to.@ 

; cf. United States v. Jackson, 

, 841 (3d Cir. 2006)

(ANor will we require district judges to routinely state by rote that they have read the

Booker decision or that they know the sentencing Guidelines are now advisory.@).

       Even where a district court does not treat the Guidelines as mandatory, however, it

may still err if it presumes that they will lead to a reasonable sentence. See Nelson v.

United States, 

, 892 (2009) (AOur cases do not allow a sentencing court to

presume that a sentence within the applicable Guidelines range is reasonable.@). Nothing

in the record, however, suggests that the District Court viewed the Guidelines in this way.

Rather, the record is clear that after calculating the Guidelines range under the existing

law (taken, as the Court noted, Aas we find it@), the Court conducted its own independent

review of the Section 3553(a) factors to ensure that the sentence imposed was reasonable.

Far from being error, this is exactly the procedure that district courts have been instructed

to follow. See, e.g., United States v. Dillon, 

, 148 (3d Cir. 2009)

(AFollowing Booker, a sentencing court must calculate a defendant=s Guidelines range, but

may only use that range as a starting point for determining a reasonable sentence based on

an individualized assessment of the factors set forth in 18 U.S.C. ' 3553(a).@).

       At bottom, Hinton is not arguing that the District Court erred in believing that the

Guidelines would presumptively lead to a reasonable sentence in his case; rather, he is

arguing that the Court erred in believing that the Guidelines would presumptively provide


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an acceptable starting point in any case.1 In other words, Hinton argues that the Court

should have rejected the crack Guidelines as inequitable before considering how 18

U.S.C. ' 3553(a) applied to the circumstances of his case.

       There is no support for this argument. To be sure, the Supreme Court has made

clear that a district court may Aconclude when sentencing a particular defendant that the

crack/powder disparity yields a sentence >greater than necessary= to achieve ' 3553(a)=s

purposes, even in a mine-run case.@ Kimbrough v. United States, 

, 110

(2007); see also Spears v. United States, 

, 843-44 (2009) (A[D]istrict Courts

are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a

policy disagreement with those Guidelines.@). While a district court may consider the

crack/powder differential in fashioning an appropriate sentence, however, it is not

required to do so. See United States v. Gunter, 

, 249 (3d Cir. 2006) (A[T]he

District Court is under no obligation to impose a sentence below the applicable

Guidelines range solely on the basis of the crack/powder cocaine differential.@); see also

United States v. Lopez-Reyes, 

, 671 (3d Cir. 2009) (AKimbrough does not

require a district court to reject a particular Guidelines range where that court does not, in

fact, have disagreement with the Guideline at issue.@).

1
  The Seventh Circuit has previously alluded to this distinction. See United States v.
Aguilar-Huerta, 

, 367-68 (7th Cir. 2009) (ABut we do not think a judge is
required to consider, not a nonfrivolous argument that a guideline produces an unsound
sentence in the particular circumstances of the case, but an argument that a guideline is
unworthy of application in any case because it was promulgated without adequate
deliberation.@).

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       Here, the District Court understood that it had discretion to not follow the crack

Guidelines but declined to exercise that discretion in Hinton=s favor:

       Insofar as there is among professionals and academics a debate, good faith
       debate over the methodology in approaching sentencing for crack cocaine,
       unless as I say, unless and until that is changed, in statute or in the
       guidelines, I choose not to exercise any discretion with respect to it.

(App. 84 (emphasis added)). Because the Court understood its discretion, heard Hinton=s

argument, and declined to adopt it for the reasons stated on the record, Hinton=s argument

must fail. See 

(AThus, it is apparent that the Court was

aware of the discretionary nature of the Guidelines and its authority to impose a sentence

outside of the prescribed range. It had no obligation to exercise that discretion in favor of

Lopez-Reyes.@).2

              B.     Consideration of Hinton=s Personal Characteristics

       A sentencing court must consider, among other things, Athe history and

characteristics of the defendant.@ 18 U.S.C. ' 3553(a)(1). With respect to the ' 3553(a)

factors, Athe record must show a true, considered exercise of discretion on the part of a

district court, including a recognition of, and response to, the parties= non-frivolous

arguments.@ 

n.7.


2
  In his reply brief, Hinton relies on United States v. Sevilla, in which we ordered a
remand for resentencing in part because the district court Adid not address Sevilla=s
colorable arguments relating to his childhood and the crack/powder disparity.@ 

, 232 (3d Cir. 2008). In Sevilla, the district court=s explanation of its sentence was
exceedingly brief, such that the defendant could well argue that the district court had not
even considered his discrepancy argument. Hinton can make no such claim.

                                              7
       At sentencing, Hinton argued that his history and characteristics would support a

lower sentence than the Guidelines recommended: he was raised by a single mother with

a drug problem, he had struggled in school, and his criminal history was not as serious as

his placement in category III would suggest. The District Court explicitly acknowledged

Hinton=s difficult upbringing and indicated that it understood Hinton=s argument with

respect to his criminal history. After considering those factors, however, the Court

explained why it would nevertheless impose a sentence within the Guidelines range:

       Although I have the discretion to, I simply feel that I cannot ignore the fact
       that Mr. Hinton, at the age of 20, was sentenced to a term in custody; placed
       on parole at the age of 23 and here he is, at age [sic] of 26, insofar as this
       crime of conviction is concerned, back out on the street, involved in a very
       well-organized drug distribution conspiracy.

       ...

       Mr. Hinton did a custodial term already and it didn=t deter him from
       committing further drug crimes. Hopefully a more substantial term will. . . .

(App. 87-89.) Hinton=s claim that the Court did not adequately consider his personal

history and characteristics is without merit and is rejected.

                      C. Substantive Reasonableness of the Sentence

       Hinton=s final argument is that the seventy-month sentence imposed by the District

Court was substantively unreasonable under 18 U.S.C. ' 3553(a), because the Court

placed too much weight on his criminal history and insufficient weight on his difficult

upbringing. AThe party challenging the sentence bears the ultimate burden of proving its

unreasonableness, and we accord great deference to a district court=s choice of final

                                              8
sentence.@ United States v. Lessner, 

, 204 (3d Cir. 2007) (citations omitted);

accord United States v. Cooper, 

, 330 (3d Cir. 2006) (A[W]e apply a

deferential standard, the trial court being in the best position to determine the appropriate

sentence in light of the particular circumstances of the case.@), abrogated on other

grounds by Kimbrough, 

.

       Hinton has not met his burden of showing that the sentence imposed was

unreasonable. The District Court considered the relevant factors under 18 U.S.C. '

3553(a). Where Athe district court=s sentence is procedurally sound, we will affirm it

unless no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided.@ United States v. Tomko,

, 568 (3d Cir. 2009). Hinton was a recidivist drug dealer who received a

procedurally proper sentence at the very bottom of the Guidelines range. His attack on

the substantive reasonableness of his sentence must fail.

                                      III. Conclusion

       We will affirm the judgment of sentence.




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