Filed: Nov. 14, 2013
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-1224 _ UNITED STATES OF AMERICA v. DAVIONE WARREN, Appellant _ On Appeal from the District Court for the District of New Jersey D.C. Criminal No. 2-12-cr-00398-001 (Honorable Susan D. Wigenton) _ Submitted Pursuant to Third Circuit LAR 34.1(a) November 12, 2013 Before: HARDIMAN, SCIRICA, and NYGAARD, Circuit Judges (Opinion Filed: November 14, 2013) _ OPINION OF THE COURT _ SCIRICA, Circuit Judge. Defendant Davione Wa
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-1224 _ UNITED STATES OF AMERICA v. DAVIONE WARREN, Appellant _ On Appeal from the District Court for the District of New Jersey D.C. Criminal No. 2-12-cr-00398-001 (Honorable Susan D. Wigenton) _ Submitted Pursuant to Third Circuit LAR 34.1(a) November 12, 2013 Before: HARDIMAN, SCIRICA, and NYGAARD, Circuit Judges (Opinion Filed: November 14, 2013) _ OPINION OF THE COURT _ SCIRICA, Circuit Judge. Defendant Davione War..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1224
___________
UNITED STATES OF AMERICA
v.
DAVIONE WARREN,
Appellant
_______________________
On Appeal from the District Court
for the District of New Jersey
D.C. Criminal No. 2-12-cr-00398-001
(Honorable Susan D. Wigenton)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 12, 2013
Before: HARDIMAN, SCIRICA, and NYGAARD, Circuit Judges
(Opinion Filed: November 14, 2013)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Defendant Davione Warren pleaded guilty to possession of a weapon in
furtherance of a drug trafficking crime and was sentenced to a prison term of eighty-four
months. He appeals his sentence, which was above the advisory sentence under the
United States Sentencing Guidelines (“the Guidelines”). We will affirm.
I.
On January 11, 2012, the East Orange Police Department responded to calls
reporting a weapon had been discharged. A witness at the scene described seeing a
shooter flee in a white four-door vehicle. The next day, a confidential informant
confirmed Warren was the shooter and had guns in his apartment and car. Police officers
established surveillance around Warren’s apartment, and when they saw a man and
woman drive away in a white four-door vehicle, they followed the vehicle and conducted
a stop. The officers found marijuana and twenty bricks of heroin in the vehicle and
placed Warren under arrest. Warren later consented to a search of his home, where
officers found eighteen bricks of heroin, two glassine envelopes of heroin, three
handguns, and $780 in cash.
A federal grand jury returned a three-count indictment against Warren. Count One
charged Warren with possession with intent to distribute heroin, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). Count Two charged him with possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Count Three
charged Warren with being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g).
On October 1, 2012, Warren pleaded guilty to Count Two of the indictment
pursuant to a plea agreement, and the Government agreed to move, at the time of
Warren’s sentencing, for dismissal of Counts One and Three. The plea agreement
2
stipulated a violation of 18 U.S.C. § 924(c) carries a mandatory minimum sentence of
sixty months and the applicable Guidelines sentence is the minimum term of
imprisonment set by statute. The agreement also stated Warren and the Government
considered the Guidelines sentence to be reasonable.
Prior to sentencing, the United States Probation Office prepared a Presentence
Investigation Report (“PSR”), which noted the Guidelines sentence of sixty months and
the parties’ agreement with that sentence. In addition, the PSR described Warren’s
extensive criminal history as a juvenile, including several criminal adjudications and
arrests, as well as one prior conviction as an adult.
On January 11, 2013, the District Court sentenced Warren to a prison term of
eighty-four months. At the start of the hearing, the court noted its review of the PSR and
the parties’ submissions, and the parties expressed no objections to the PSR. Neither
party moved for a departure from the Guidelines sentence. The court then heard from
Warren’s defense counsel and the Government, each of whom argued for a sentence of
sixty months.
Afterward, the District Court analyzed the sentencing factors it was bound to
consider under 18 U.S.C. § 3553(a) and concluded a sixty-month sentence would not be
appropriate. The court paid particular attention to Warren’s long criminal record as a
juvenile and prior adult conviction, the seriousness of his offense, and the need for the
sentence imposed to provide just punishment, afford deterrence, and avoid sentencing
disparities. Illustrating the seriousness of the offense, the court engaged in a hypothetical
calculation of Warren’s Guidelines sentence considering Count One of the indictment.
3
The court found the advisory sentence in that scenario to be thirty to thirty-seven months,
with an additional sixty months for Warren’s violation of 18 U.S.C. § 924(c). After a
thorough analysis of the sentencing factors under § 3553(a), the District Court stated its
intention to vary upward from the Guidelines sentence and imposed a term of
imprisonment of eighty-four months. This timely appeal followed.1
II.
Warren challenges his sentence under Rule 32(h) of the Federal Rules of Criminal
Procedure, which requires a sentencing court to give “reasonable notice” that it is
contemplating a departure if the ground for departure is not identified in the PSR or a
party’s prehearing submission. Fed. R. Crim. P. 32(h). He contends the District Court
erred by failing to give advance notice of its intent to depart from the Guidelines sentence
of sixty months. Yet Warren acknowledges no legal error occurred if the court’s decision
to impose a more severe sentence constituted a variance based on the factors enumerated
in 18 U.S.C. § 3553(a), rather than a departure under the Sentencing Guidelines. 2 Indeed,
the United States Supreme Court has held the notice protections of Rule 32(h) do not
extend to variances under § 3553(a). Irizarry v. United States, 553 U.S. 708, 714-16
(2008); see also United States v. Vampire Nation,
451 F.3d 189, 197 (3d Cir. 2006).
Because the record reveals Warren made no objection to his sentence, we review
for plain error. See Vampire Nation, 451 F.3d at 195. Under this standard, relief may be
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. §§ 1291 and 3742(a).
2
A departure is a divergence from the Guidelines range “for reasons contemplated by the
Guidelines themselves,” whereas a variance is “given in the exercise of a district court’s
discretion.” United States v. Jackson,
467 F.3d 834, 837 n.2 (3d Cir. 2006).
4
granted only if (1) an error was committed, (2) the error was plain, meaning it was clear
and obvious, and (3) the error affected Warren’s substantial rights. United States v.
Knight, 266 F.3d 203, 206 (3d Cir. 2001) (citation omitted).
Warren cannot meet this standard. Where a court’s divergence from the
Guidelines sentence is based on its discretion under § 3553(a) and not on a departure
from the advisory Guidelines range, a defendant is “not entitled to advance notice under
Rule 32(h) of the District Court’s intent to vary its sentence.” Vampire Nation, 451 F.3d
at 197. The record in this case is unambiguous—the District Court imposed a sentence
greater than sixty months not because of a ground for departure in the Guidelines but
because of its analysis of the § 3553(a) sentencing factors. In particular, the court
concluded a sixty-month sentence would be inadequate considering Warren’s extensive
criminal history as a juvenile, his prior adult conviction, the seriousness of his offense,
and the need to provide adequate deterrence to criminal conduct and avoid sentencing
disparities. See 18 U.S.C. § 3553(a).
Despite the District Court’s explicit reliance on § 3553(a) to vary from the
Guidelines sentence, Warren argues the court’s basis for imposing a more severe
sentence was its hypothetical calculation of a Guidelines sentence for his heroin
possession charge. But that calculation was not a Guidelines departure. Rather, the court
engaged in the calculation to explain why a prison term of sixty months would not
“accurately reflect[] what transpired here.” App. II at 19. Applying § 3553(a), the court
was considering “the need for the sentence imposed . . . to reflect the seriousness of the
offense.” 18 U.S.C. § 3553(a)(2)(A).
5
Because the District Court did not make a departure under the Sentencing
Guidelines, Rule 32(h) has no application to this case, and the court’s variance under
§ 3553(a) was without error.
III.
For the foregoing reasons, we will affirm the judgment of conviction and
sentence. 3
3
We will also grant Warren’s motion to seal Volume II of his Appendix, as it contains
his Presentence Investigation Report.
6
