United States v. Delbuono

357 F. App'x 429
CourtCourt of Appeals for the Third Circuit
DecidedDecember 18, 2009
DocketNo. 08-3603
StatusPublished

This text of 357 F. App'x 429 (United States v. Delbuono) 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. Delbuono, 357 F. App'x 429 (3d Cir. 2009).

Opinion

OPINION

AMBRO, Circuit Judge.

Michael DelBuono appeals his sentence after he pled guilty to three offenses: (1) conspiracy to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C); (2) distribution of heroin in violation of 21 U.S.C. § 841(a)(1); and (3) distribution, and aiding and abetting the distribution, of heroin in violation of 21 U.S.C. § 842 and 18 U.S.C. § 2. DelBuono claims that the Court abused its discretion in considering the relevant sentencing factors under 18 U.S.C. § 3553(a) and that, in any event, his sentence was unreasonable. We disagree and thus affirm.

In October 2007, DelBuono was indicted by a federal grand jury. The indictment charged him with the crimes noted above, to all of which he pled guilty. This was an open plea, not pursuant to any written agreement with the Government. DelBuo-no does not challenge his plea nor the factual basis.

Prior to sentencing, the final Pre-Sen-tence Investigation Report was issued by [430]*430the assigned United States Probation Officer. It concluded that the advisory Guidelines range was 188 to 235 months’ incarceration. At that time, the Government submitted a Sentencing Memorandum that asked the District Court to impose a sentence within the advisory range. In August 2008, two days before the sentencing hearing, DelBuono asked for a sentence at the bottom of the Guidelines range. Through his counsel, he submitted to the Court numerous letters of support from members of the community where he lived.

On examination, the Government concluded that at least some of the letters of support were fraudulently created by Del-Buono’s sister. This was determined in part through recordings of DelBuono’s telephone conversations at the Federal Detention Center in Philadelphia. The Government then prepared a Motion for Upward Variance, which it filed immediately prior to the sentencing hearing. The District Court asked the Government and DelBuono whether either wanted a continuance for purposes of responding, but Del-Buono and counsel stated that they were prepared to proceed. Later in the hearing, the Government withdrew its Motion for Upward Variance and instead argued for a sentence at the high end of the Guidelines range based in part on the submission of fraudulent letters. The Court specifically stated that it would ignore the allegedly fabricated letters themselves, but would take into consideration DelBuono’s apparent approval and encouragement of their creation. The Court also stated that it would pay “respectful attention” to letters that were signed and appeared genuine. Finally, during argument by counsel for DelBuono, the Court specifically noted that it would take into consideration the factors in § 8553(a).

After argument, DelBuono was sentenced to 230 months’ imprisonment. The District Court stated its reasoning on the record, taking care to discuss the factors under § 3553(a). The Court stated that it had intended to sentence DelBuono at the bottom of the Guidelines range, but in light of the presentation of false letters with DelBuono’s encouragement, it sentenced him at the top of the range. He now appeals that sentence.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. To the extent DelBuono contends that his sentence was imposed in violation of law, we have jurisdiction under 18 U.S.C. § 3742.

We review a sentence under a deferential abuse-of-discretion standard. United States v. Jones, 566 F.3d 353, 366 (3d Cir.2009) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). We first ensure that the District Court committed no significant procedural error in arriving at its decision; second, we review the substantive reasonableness of the sentence. Id. (citation omitted).

The only question appealed by DelBuo-no is whether the District Court was unreasonable in sentencing him to 230 months’ imprisonment and whether such a sentence was greater than necessary to account for all sentencing factors in § 3553(a).1 Specifically, he argues that the Court “failed to give relevant factors the significant weight that should have been afforded those factors,” such as his [431]*431“horrific upbringing,” his “lower intellectual ability,” and his “most obvious drug abuse that went untreated.” He also draws attention to the fraudulent letters, arguing that the Court improperly considered them after the Government withdrew its motion for an upward variance. We see no abuse of discretion.

While a district court need not discuss and make findings as to each § 3553(a) factor2 if the record makes clear it took the factors into account in sentencing and gave them meaningful consideration, here the Court systematically went through the various factors. It specifically considered the history and characteristics of DelBuo-no, noting that although he had problems growing up, he is “a smart, grown-up man [who] should [have] known better.” It also noted that he apparently never tried to get a legitimate job, and upon his release from prison for a prior offense, he went “back to leading a heroin distribution gang.” He “show[ed] no inclination to change his ways ... [, as] he’s had a third, fourth, and fifth chance.” With respect to the nature and circumstances of the offense, the Court noted that DelBuono was the leader of the gang, “not just a street follower.” It also noted that there was no need for drug rehabilitation. DelBuono’s counsel, the same attorney who represents him on appeal, conceded at sentencing that Del-Buono was “obviously” not a drug addict and “ha[d]n’t been for a while.” He also conceded that there was nothing in the record to suggest that the prior drug offenses were the result of a personal need for drugs instead of a need for money.

The Court considered DelBuono’s arguments whether 10, 12, or 13 years would be sufficient to send a message to the community, and it concluded that a longer sentence would “keep[] the community safe while he’s put away” and thereby protect the public from further crimes by DelBuono. The Court also considered the rehabilitative purposes of the sentence from a vocational standpoint, emphasizing that the sentence imposed would “give [DelBuono] a chance to develop a career, get a job in prison and learn how to do something and earn money legally, which will be something new and novel for [him] when [he] get[s] out.” It considered as well the other kinds of sentences available, [432]*432and concluded imprisonment was necessary.

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Related

Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Jones
566 F.3d 353 (Third Circuit, 2009)

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Bluebook (online)
357 F. App'x 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-delbuono-ca3-2009.