US v. Merced

• Decision Date: 20 April 2010
• Docket Number: No. 09-1844.,09-1844.
• Citation: 603 F.3d 203
• Parties: UNITED STATES of America, Appellant v. Hector MERCED, a/k/a Braveheart.
• Court: U.S. Court of Appeals — Third Circuit

603 F.3d 203

UNITED STATES of America, Appellant v. Hector MERCED, a/k/a Braveheart.

No. 09-1844.

United States Court of Appeals, Third Circuit.

Argued March 8, 2010.

Filed April 20, 2010.

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John F. Romano, (argued), George S. Leone, Office of United States Attorney, Newark, NJ, for Appellant.

Louise Arkel, (argued), David A. Holman, Office of Federal Public Defender, Newark, NJ, for Appellee.

Before: AMBRO, SMITH, and MICHEL^*, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Hector Merced pleaded guilty to a drug possession charge and was sentenced to five years of imprisonment. That sentence was well below the prison term recommended by the Sentencing Guidelines. The United States appeals, claiming that the District Court committed procedural errors in determining Merced's sentence. We agree with the government. Accordingly, we will vacate the judgment of sentence and remand for resentencing.

I.

On June 27, 2007, Merced sold 49.1 grams of crack cocaine to an undercover police officer. Merced received $1,500 from the sale, and expressed willingness to do more deals in the future. He was arrested on January 14, 2008. He pleaded guilty to one count of distributing and possessing with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a) and (b)(1)(B).¹ That crime carries a five-year mandatory minimum sentence. 21 U.S.C. § 841(b)(1)(B).

A pre-sentence report (PSR) was prepared. The PSR recounted Merced's extensive criminal history, which included:

• a 1997 conviction for possession of controlled dangerous substances ("CDS") — specifically, 41 bags of crack cocaine and a bag of marijuana — with intent to distribute within 1000 feet of school property;

• two 1998 convictions for prowling public places;²

• a 1999 conviction for possession of CDS (15 bags of cocaine) with intent to distribute within 1000 feet of school property;

• a 2001 conviction for receiving a stolen vehicle;

• a 2001 conviction for possession of CDS (52 bags of heroin and 8 bags of crack cocaine) with intent to distribute within 1000 feet of school property; and

• a 2006 conviction for conspiracy to distribute CDS (23 bags of marijuana).

Due to his criminal history, Merced qualified as a career offender under U.S.S.G. § 4B1.1. That provision applied because (1) Merced was more than 18 years old when he participated in the June 27, 2007 crack cocaine deal, (2) his crime was a controlled substance offense, and (3) he had two or more prior felony convictions that were controlled substance offenses. See U.S.S.G. § 4B1.1(a). Merced's career offender status increased his offense level to 34, id. § 4B1.1(b); a three-level reduction for acceptance of responsibility lowered that level to 31. Id. § 3E1.1. The PSR placed him in Criminal History Category VI. Id. § 4B1.1(b). His combined offense level and Criminal History Category yielded an advisory Guidelines range of 188 to 235 months. Absent the career offender provision, his base offense level would have been 28, his adjusted offense level 25, and his Guidelines range 110-137 months.

Both parties filed memoranda before the sentencing hearing. Merced argued for a below-Guidelines sentence. He acknowledged that the Guidelines range of 188-235 months had been correctly calculated, but argued that the resulting Guidelines sentence was "exceedingly harsh" and not justified under the sentencing factors of 18 U.S.C. § 3553(a).³ His argument was two-fold. First, based on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), he attacked the crack cocaine Guidelines and the career offender provision of § 4B1.1 on policy grounds. He claimed that because neither reflected the Sentencing Commission's "exercise of its characteristic institutional role," his Guidelines range, which was a product of those two provisions, was a "poor touchstone in any § 3553(a) inquiry." Second, he argued that consideration of the sentencing factors in his specific case counseled in favor of leniency. Merced claimed that he was a casualty of a "`perfect storm' of discouraging forces: a splintered family, economic struggle, and an increasingly punitive criminal justice system." Merced explained that his life "imploded" at the age of 12, when two ex-convict uncles moved into his home and got his mother hooked on crack cocaine. According to Merced, the mother's addiction led to domestic strife, and eventually caused Merced's father to abandon the family and move to Puerto Rico. Merced claimed that this troubled childhood pushed him down the wrong path and led him to a life of criminal activity for which he was not wholly responsible. Additionally, he asked the court to consider his strong relationship with his longtime girlfriend and their 10-year-old son, as well as letters from various family members attesting to his positive attributes. Merced did not request a sentence of any particular length, but he argued that even a 10-year sentence was "simply not necessary" to satisfy the sentencing goals of § 3553(a).

The government advocated a sentence within the Guidelines range and urged the court to reject Merced's Kimbrough attack on § 4B1.1. It argued that Kimbrough was inapposite because, unlike the crack cocaine Guidelines at issue in that case, the career offender provision that dictated Merced's recommended sentence reflected not only the Sentencing Commission's exercise of its unique institutional role, but also direct "congressional involvement in the setting of punishment for certain recidivists." (A. 53-55, citing 28 U.S.C. § 994(h)). It further argued that even if the Court accepted Merced's argument based on Kimbrough, it should not apply a replacement ratio less than the 20:1 ratio accepted by the Supreme Court in Spears v. United States, ___ U.S. ___, 129 S.Ct. 840, 842, 172 L.Ed.2d 596 (2009). According to the government, applying that ratio would generate a Guidelines range of 92 to 115 months, and "any ratio less than this would result in significant sentencing disparities, as a defendant who possessed merely an additional .9 grams of crack i.e., 50 grams ... and had no criminal history whatsoever, would be subject to a mandatory minimum term of ten years' imprisonment, under 21 U.S.C. § 841(b)(1)(A)."

Finally, the government turned to the sentencing factors and argued that each relevant factor weighed in favor of a Guidelines sentence. It emphasized Merced's criminal history, which included at least five drug-related convictions, and the seriousness of his offense. See 18 U.S.C. § 3553(a)(1)-(2). It argued that a Guidelines-length sentence was necessary to protect the public and to deter both Merced and other drug dealers. See id. § 3553(a)(2)(B)-(C). The government also contended that a within-Guidelines sentence was necessary to avoid unwarranted sentencing disparities. See id. § 3553(a)(6). It argued that Merced's sentence "should be commensurate to other career offenders convicted of similar offenses in New Jersey and across the country."

The District Court held a sentencing hearing on February 24, 2009. At that hearing, the Court took particular interest in the application of the career offender provision. All parties agreed that Merced was eligible for career offender status under a mechanical application of § 4B1.1. The point of debate was not Merced's technical eligibility, but whether the Court should sentence him within the range generated by applying that provision. Throughout the hearing, the District Court was obviously wrestling with two competing realities. The first was that Merced was a 31-year-old career criminal who had not been deterred by the punishment he received for his prior convictions. The second was that many of the crimes that brought Merced within § 4B1.1 were "street level" offenses that the Court did not consider to be terribly serious. This tension between the numerosity and the severity of Merced's crimes led the District Court to engage in an on-one-hand-on-the-other-hand dialectic several times during the hearing. For example:

Merced has been a repetitive drug — street drug dealer, okay? He just doesn't get it. I mean, he's been on the street dealing drugs, relatively small amounts compared to what I often see, but he's been doing it repetitively. ... And it begins at a very young age, it begins at 19. He's 31 years of age now. It begins at 19. A lot of what's in his record with the exception of four prior drug arrests, a lot of it is the type of stuff that you see with people who are dealing with drugs on the street level. I'm not minimizing it, but, you know, public — prowling, public places, a couple of municipal court violations.

After walking through the specifics of Merced's criminal history, the Court returned to this issue. He acknowledged that "there are career offenders and there are career offenders. ... But he hasn't learned." In the same vein, the Court later noted that "we're talking about a relatively small sale of crack cocaine at the street level. But it's his fifth time he's done this now. ... I don't know when he's going to wake up."

In the midst of his oral ruminations, however, the District Court revealed another possible reason for its reluctance to sentence Merced as a career criminal. The Court told Merced that he needed to realize that "he can't make a living like this" because "another judge might ... apply the career offender status recommendation.... I have a problem with that. I mean, I kind of reserve career offender status for violent, significant drug deals, that type of thing, even though the guidelines may advise that it's appropriate." (A. 76, emphasis added.) The Court did not explain either how it arrived at this personal sentencing policy, or why it believed that the contrary policies reflected in the Guidelines were out of line.

During the hearing, the...