United States v. Dair

174 F. App'x 68
CourtCourt of Appeals for the Third Circuit
DecidedMarch 15, 2006
Docket05-1349
StatusUnpublished

This text of 174 F. App'x 68 (United States v. Dair) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dair, 174 F. App'x 68 (3d Cir. 2006).

Opinion

OPINION OF THE COURT

FUENTES, Circuit Judge.

This is a sentencing appeal following a plea of guilty. Appellant John Dair challenges his 325-month sentence imposed based upon the role he played in a large drug conspiracy. Specifically, he alleges that the District Court erred in making certain findings of fact at sentencing, that his sentence is unreasonable in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that the District Court abused its discretion at sentencing by denying a motion to reweigh the amount of crack cocaine seized. For the reasons stated herein we reject all three of these claims and affirm the sentence imposed by the District Court.

I. Background

Because we write only for the parties, we offer only a cursory outline of the facts. Dair was charged in connection with his participation in the Courtney Carter Narcotics Organization, which was responsible for drug trafficking and related activity in a number of locations, including Philadelphia, Western Pennsylvania and Delaware. All told thirty-seven individuals were charged in this conspiracy, which spanned from 1997 through 2002 and distributed approximately 400 kilograms of cocaine base and 600 kilograms of cocaine over that period.

Dair was a member of the conspiracy between 1997 and 1999, during which time he sold cocaine and worked as a driver. As a result, he was charged with conspiracy to distribute more than 50 grams of cocaine base and more than five kilograms of cocaine in violation of 21 U.S.C. § 846, distribution of 50 grams or more of cocaine base in violation of 21 U.S.C. § 841, and distribution of 50 grams or more of cocaine base within 1000 feet of a school in violation of 21 U.S.C. § 860. The day of his trial, Dair pled guilty to all three charges. Pending sentencing, the terms of Dair’s pre-trial release were continued, and he remained free on bail. Before Dair could be sentenced, however, he sold crack to an *70 undercover agent, which resulted in the revocation of his pre-sentence release.

The pre-sentence report recommended a total offense level of 37 and a criminal history category of III, yielding a Sentencing Guidelines range of 262-327 months. The report’s offense level of 37 arose in part from a 2-level downward departure based upon Dair’s Acceptance of Responsibility. In light of Dair’s pre-sentencing crack sale, however, the District Court declined to grant the recommended 2-level departure and sentenced Dair at offense level 39. At this level, Dair’s criminal history category remained at III, but the applicable Guidelines range increased to 324-405 months. In a post-Booker proceeding, the District Court sentenced Dair to 325 months in prison, near the bottom of this range. This challenge to the District Court’s sentence followed.

II. Discussion

A. District Court’s Findings of Fact

Dair first claims that the District Court erred in its findings of fact, specifically as to the amount of drugs it attributed to him. Notwithstanding his pleading guilty to being a member of the conspiracy, Dair argues that he was never responsible for the large sum of drugs that informed his sentence, namely 150 kilograms of cocaine and 1.5 kilograms of cocaine base. We review the District Court’s findings of fact under the clear error standard. United States v. Butch, 256 F.3d 171, 177 (3d Cir.2001). Under that standard, Dair’s claim must fail.

Dair pled guilty under 21 U.S.C. § 846, which reads, “[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Thus, Dair’s pleading to membership in the conspiracy subjects him to penalties based upon not just the quantity of drugs he handled, but the quantity handled by the entire conspiracy. As detailed in Dair’s pre-sentence report, the conspiracy handled approximately 600 kilograms of cocaine and 400 kilograms of cocaine base, far in excess of the 150 and 1.5 kilograms of these drugs, respectively, underlying Dair’s Guidelines range.

Moreover, the District Court was well aware of the extent of this conspiracy, as he conducted all of the trials relating to the conspiracy and presided over these cases for a total of eighty-five trial days. In our view, it was not improper for the District Court to employ the knowledge it had gleaned from the other conspiracy-related proceedings in order to determine its scale. See United States v. Reynoso, 254 F.3d 467, 474 (3d Cir.2001) (noting that a sentencing court may rely on evidence from another proceeding so long as it makes available to counsel transcripts from the relevant proceedings and provides enough time for counsel to examine them). Deferring to the District Court as we must, we see no clear error in its determination of the amounts of cocaine and cocaine base the conspiracy controlled, for purposes of Dair’s sentencing.

B. Unreasonableness in Light of Booker

As mentioned above, the District Court sentenced Dair after Booker. Dair claims that in light of that case, his sentence of 325 months was unreasonable. We recently established our test for the reasonableness of a post-Booker sentence in United States v. Cooper, 437 F.3d 324 (3d Cir.2006). To determine the reasonableness of a sentence, “we must first be satisfied the court exercised its discretion by considering the relevant factors.” Id. *71 at 329. Pursuant to 18 U.S.C. § 3553(a), the relevant factors are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;

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Related

United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
United States v. Gilberto Orozco-Rodriguez
60 F.3d 705 (Tenth Circuit, 1995)
United States v. Wandy Reynoso
254 F.3d 467 (Third Circuit, 2001)
United States v. Joseph Butch
256 F.3d 171 (Third Circuit, 2001)
United States v. Lydia Cooper
437 F.3d 324 (Third Circuit, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
174 F. App'x 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dair-ca3-2006.