NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 20-3514 _____________
UNITED STATES OF AMERICA
v.
HAKIM WILBURN, Appellant __________
On Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. No. 3-18-cr-00265-001) District Judge: Honorable Robert D. Mariani _______________
Submitted Under Third Circuit L.A.R. 34.1(a) March 14, 2022
Before: JORDAN, KRAUSE and PORTER, Circuit Judges
(Filed: March 17, 2022) _______________
OPINION _______________
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge.
Hakim Wilburn appeals the sentence he received after pleading guilty to
conspiring to illegally distribute drugs. He claims that, to avoid an excessive sentence, he
should have been simultaneously sentenced for violating his supervised release on an
unrelated offense. He did not make that argument in the District Court, and, it appears,
for good reason: it is unsupportable. It certainly cannot survive plain-error review. We
will thus affirm.
I. BACKGROUND
Wilburn and his co-conspirators1 came to the attention of the Federal Bureau of
Investigation in June 2015, when agents discovered that Wilburn was involved in the
trafficking and sale of heroin and other illegal narcotics throughout northeastern
Pennsylvania.
Agents worked closely with cooperating witnesses to discover the extent of
Wilburn’s drug-trafficking business. They learned that he obtained heroin in New York
City and took it to Newark, New Jersey. At that point, he paid a relative to take the drugs
to Wilkes-Barre, Pennsylvania. Wilburn stored the drugs at his home in Wilkes-Barre
and at storage facilities in the area.
1 Wilburn’s wife, Danielle Moorer, was charged alongside him as a co-conspirator. Moorer pled guilty to conspiracy to distribute and to possess with intent to distribute over one kilogram of heroin and cocaine, in violation of 21 U.S.C. § 846, and was sentenced to 127 months’ imprisonment.
2 Agents eventually conducted thirteen controlled purchases of heroin and cocaine
from Wilburn and his wife. Each of the controlled purchases was recorded and
surveilled. During those transactions, they learned that Wilburn was also using heroin as
a form of compensation for the employees of his construction company.
Eventually, in August 2018, a grand jury in the United States District Court for the
Middle District of Pennsylvania returned a fourteen-count indictment charging Wilburn
with conspiracy to distribute and to possess with intent to distribute one kilogram or more
of heroin and an unspecified amount of cocaine, in violation of §§ 841(b)(1)(A)(i) and
846 (Count 1), and with thirteen counts of possession with intent to distribute and
distribution of heroin and cocaine, and aiding and abetting thereof, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Counts 2-14). Agents executed search
warrants the next day and recovered forty-five bricks of heroin and fentanyl and firearms
from Wilburn’s home and a storage facility. Wilburn was arrested and pled not guilty.
This was not his first run-in with the law. While he was dealing drugs in
Pennsylvania, he was on supervised release for an unrelated 2003 federal conviction for
dealing drugs in New Jersey. The terms of his supervised release prohibited him from
committing another federal, state, or local crime and from moving out of New Jersey.
Because he violated those terms, Wilburn faced the potential of sentencing on two
separate criminal matters: the drug-trafficking offenses charged in the 2018 indictment,
and his supervised release violation. Responsibility for handling the latter was
transferred from the District of New Jersey to the Middle District of Pennsylvania.
3 About a year after his indictment, the government filed a one-count superseding
information charging Wilburn with conspiracy to distribute over one kilogram of heroin
and over 500 grams of cocaine. Pursuant to a plea agreement, he pled guilty to that
information in exchange for the government’s promise to recommend that the sentencing
guidelines calculation for his crime be based on his having distributed between one and
three kilograms of heroin and between 500 grams and two kilograms of cocaine.
Wilburn faced a mandatory minimum sentence of fifteen years under 21 U.S.C.
§ 84l(b)(l)(A), and a recommended guidelines range of 235 months to 293 months’
imprisonment. At the sentencing hearing, the District Court imposed a sentence of 198
months, which was thirty-seven months below the low end of Wilburn’s guidelines range
but eighteen months above the mandatory minimum. Wilburn did not object to that
sentence before the District Court but instead timely appealed it.2
Later, while his appeal was pending, the District Court separately sentenced him to
a thirty-six-month term of imprisonment for violating the conditions of his 2003
conviction in New Jersey, to run consecutively with his 198-month sentence for the
instant offense.
2 The government says that Wilburn made objections with respect to certain sentencing enhancements, but the record reflects that, while defense counsel had indicated before sentencing that objections would be made, none were. Perhaps his below-guidelines-range sentence prompted that decision.
4 II. DISCUSSION3
Wilburn’s argument is simple, and consists of three paragraphs: he says that the
District Court should have simultaneously sentenced him for both the present offense and
his supervised release violation. He explains that the Court’s “[f]ailure to impose
sentencing on both matters left [him] with uncertainty as to the final total term of
imprisonment for which he would be responsible.” (Opening Br. at 11.) Because
Wilburn did not object below, we review for plain error.
Under plain-error review, Wilburn must prove that (1) the District Court erred,
(2) the error was clear or obvious, (3) it affected his substantial rights, and (4) it
“seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732-36 (1993) (citation omitted). Here, the District
Court did not err, much less plainly so, by sentencing Wilburn separately for his present
offense and his supervised release violation.
We have required simultaneous sentencing for a single term of imprisonment
when the same conduct provided the basis for two offenses under consideration at once.
In United States v. Gomez, 593 F.2d 210, 212-15 (3d Cir. 1979) (en banc), for instance,
we vacated the district court’s separate sentences for two counts – possession with intent
to distribute and actual distribution – because both convictions stemmed from the same
transaction. We held that Congress intended for crimes arising under the same statutory
3 The District Court had jurisdiction under 18 U.S.C.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 20-3514 _____________
UNITED STATES OF AMERICA
v.
HAKIM WILBURN, Appellant __________
On Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. No. 3-18-cr-00265-001) District Judge: Honorable Robert D. Mariani _______________
Submitted Under Third Circuit L.A.R. 34.1(a) March 14, 2022
Before: JORDAN, KRAUSE and PORTER, Circuit Judges
(Filed: March 17, 2022) _______________
OPINION _______________
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge.
Hakim Wilburn appeals the sentence he received after pleading guilty to
conspiring to illegally distribute drugs. He claims that, to avoid an excessive sentence, he
should have been simultaneously sentenced for violating his supervised release on an
unrelated offense. He did not make that argument in the District Court, and, it appears,
for good reason: it is unsupportable. It certainly cannot survive plain-error review. We
will thus affirm.
I. BACKGROUND
Wilburn and his co-conspirators1 came to the attention of the Federal Bureau of
Investigation in June 2015, when agents discovered that Wilburn was involved in the
trafficking and sale of heroin and other illegal narcotics throughout northeastern
Pennsylvania.
Agents worked closely with cooperating witnesses to discover the extent of
Wilburn’s drug-trafficking business. They learned that he obtained heroin in New York
City and took it to Newark, New Jersey. At that point, he paid a relative to take the drugs
to Wilkes-Barre, Pennsylvania. Wilburn stored the drugs at his home in Wilkes-Barre
and at storage facilities in the area.
1 Wilburn’s wife, Danielle Moorer, was charged alongside him as a co-conspirator. Moorer pled guilty to conspiracy to distribute and to possess with intent to distribute over one kilogram of heroin and cocaine, in violation of 21 U.S.C. § 846, and was sentenced to 127 months’ imprisonment.
2 Agents eventually conducted thirteen controlled purchases of heroin and cocaine
from Wilburn and his wife. Each of the controlled purchases was recorded and
surveilled. During those transactions, they learned that Wilburn was also using heroin as
a form of compensation for the employees of his construction company.
Eventually, in August 2018, a grand jury in the United States District Court for the
Middle District of Pennsylvania returned a fourteen-count indictment charging Wilburn
with conspiracy to distribute and to possess with intent to distribute one kilogram or more
of heroin and an unspecified amount of cocaine, in violation of §§ 841(b)(1)(A)(i) and
846 (Count 1), and with thirteen counts of possession with intent to distribute and
distribution of heroin and cocaine, and aiding and abetting thereof, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Counts 2-14). Agents executed search
warrants the next day and recovered forty-five bricks of heroin and fentanyl and firearms
from Wilburn’s home and a storage facility. Wilburn was arrested and pled not guilty.
This was not his first run-in with the law. While he was dealing drugs in
Pennsylvania, he was on supervised release for an unrelated 2003 federal conviction for
dealing drugs in New Jersey. The terms of his supervised release prohibited him from
committing another federal, state, or local crime and from moving out of New Jersey.
Because he violated those terms, Wilburn faced the potential of sentencing on two
separate criminal matters: the drug-trafficking offenses charged in the 2018 indictment,
and his supervised release violation. Responsibility for handling the latter was
transferred from the District of New Jersey to the Middle District of Pennsylvania.
3 About a year after his indictment, the government filed a one-count superseding
information charging Wilburn with conspiracy to distribute over one kilogram of heroin
and over 500 grams of cocaine. Pursuant to a plea agreement, he pled guilty to that
information in exchange for the government’s promise to recommend that the sentencing
guidelines calculation for his crime be based on his having distributed between one and
three kilograms of heroin and between 500 grams and two kilograms of cocaine.
Wilburn faced a mandatory minimum sentence of fifteen years under 21 U.S.C.
§ 84l(b)(l)(A), and a recommended guidelines range of 235 months to 293 months’
imprisonment. At the sentencing hearing, the District Court imposed a sentence of 198
months, which was thirty-seven months below the low end of Wilburn’s guidelines range
but eighteen months above the mandatory minimum. Wilburn did not object to that
sentence before the District Court but instead timely appealed it.2
Later, while his appeal was pending, the District Court separately sentenced him to
a thirty-six-month term of imprisonment for violating the conditions of his 2003
conviction in New Jersey, to run consecutively with his 198-month sentence for the
instant offense.
2 The government says that Wilburn made objections with respect to certain sentencing enhancements, but the record reflects that, while defense counsel had indicated before sentencing that objections would be made, none were. Perhaps his below-guidelines-range sentence prompted that decision.
4 II. DISCUSSION3
Wilburn’s argument is simple, and consists of three paragraphs: he says that the
District Court should have simultaneously sentenced him for both the present offense and
his supervised release violation. He explains that the Court’s “[f]ailure to impose
sentencing on both matters left [him] with uncertainty as to the final total term of
imprisonment for which he would be responsible.” (Opening Br. at 11.) Because
Wilburn did not object below, we review for plain error.
Under plain-error review, Wilburn must prove that (1) the District Court erred,
(2) the error was clear or obvious, (3) it affected his substantial rights, and (4) it
“seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732-36 (1993) (citation omitted). Here, the District
Court did not err, much less plainly so, by sentencing Wilburn separately for his present
offense and his supervised release violation.
We have required simultaneous sentencing for a single term of imprisonment
when the same conduct provided the basis for two offenses under consideration at once.
In United States v. Gomez, 593 F.2d 210, 212-15 (3d Cir. 1979) (en banc), for instance,
we vacated the district court’s separate sentences for two counts – possession with intent
to distribute and actual distribution – because both convictions stemmed from the same
transaction. We held that Congress intended for crimes arising under the same statutory
3 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
5 scheme and out of the same criminal conduct to be sentenced as one. See id. at 212-14
(analyzing two convictions both based on 21 U.S.C. § 841(a)(1)); see also United States
v. Rosenberg, 806 F.2d 1169, 1176 (3d Cir. 1986) (“Courts are reluctant to impose two
penalties for the same criminal conduct absent clear congressional intent otherwise[.]”).
Gomez has no relevance here, because Wilburn’s conspiracy conviction and
supervised release violation arose out of entirely separate instances of unlawful conduct,
criminalized under different statutes. The sentence now on appeal relates to the drug-
trafficking enterprise he ran in Pennsylvania from 2015 through 2018. In contrast, his
supervised release violation relates to his drug distribution activities in New Jersey years
earlier.4 The District Court thus did not err by sentencing Wilburn as it did.
III. CONCLUSION
For the foregoing reasons, we will affirm.
4 The government interprets Wilburn’s brief as also challenging the substantive reasonableness of his sentence by arguing that it was an abuse of discretion to sentence him above the mandatory minimum. We see no indication that Wilburn actually raises such an argument. To the extent he does make that unpreserved argument, however, it does not persuade us that the District Court substantively erred.