2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2012/311 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 12

- 2023

_____________ UNITED STATES OF AMERICA

v. JOHN JAMES GALLAGHER, JR., Appellant

______________ APPEAL FROM THE UNITED STATES DISTRIC T COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Crim . Action No

. 4:09

- cr - 00415

- 004 ) District Judge: Honorable John E. Jones, III

______________ Submitted Under Third Circuit LAR 34.1(a) Submitted: December 13, 2012

______________ Before: GREENAWAY , JR., GREENBERG, and COWEN , Circuit Judges

. (Opinion Filed: December 19, 2012 )

______________ OPINION

______________ GREENAWAY, JR., Circuit Judge

. Appellant John James Gallagher, Jr. (“Gallagher”) appeals the District Court’s2 March 26, 2012 Judgment an d sentence of 78 months’ imprisonment. For the reasons that follow, we will affirm. I. Because we write primarily for the benefit of the parties, we recount only the essential facts. In January 2006, Gallagher moved from Hazelton, Pennsylvania to Arizona. After his move, Gallagher maintained contact with Arthur Schade (“Schade”), a friend and methamphetamine user, who resided in Pennsylvania. At some point after the move, Schade asked Gallagher about the availability of methamphetamine in Arizon a . BACKGROUND

After he moved to Arizona, Gallagher became acquainted with several Mexican nationals, including an individual named “Ricardo.” Ricardo offered to sell Gallagher drugs. Gallagher, recalling Schade’s request, arranged to buy methamphetamine from Ric ardo, which he then shipped to Schade in Pennsylvania. Gallagher continued to ship methamphetamine from Arizona to Pennsylvania in multi

- pound quantities until December 2009. Gallagher profited from these transactions

. Gallagher was arrested in December 2009

. When approached by the investigating officers, Gallagher immediately agreed to cooperate. Gallagher described the unlawful arrangement by which he obtained methamphetamine from Ricardo and other Mexican nationals and sold it to customers in Pennsy lvania, including Schade. After proffering information to the authorities, Gallagher was released to continue his cooperat ion. Gallagher worked with law enforcement to set up a controlled buy result ing in the arrest of several co

- conspirators in both Ari zona and Pennsylvania. After this initial3 transaction, Gallagher continue d to work with authorities

. Between January 2010 and January 2012, Gallagher met with law enforcement officers and prosecutors at least four times for proffer sessions and to review wiretap recordings, exhibits , and other evidence in anticipation of his testimony at trial

. Gallagher also testified before a Grand Jury. Although the co

- conspirators ultimately pled guilty , Gallagher was prepared to testify and the Government acknowled ged his value. Gallagher also a bly assisted state and local law enforcement in a number of other narcotic s investigations in Pennsylvania

. Specifically, he made controlled phone calls to set up meetings with potential drug sellers, wore body wire record ers to those meetings , made ten controlled purchases of cocaine , and regularly provided the authorities with information regarding drug activity in the area. Gallagher’s cooperation resulted in numerous arrests and convictions. By all accounts, Gallagher was a reliable informant, despite being threatened for being an informant on more than one occasion. After Gallagher pled guilty to one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine , the Gove rnment filed a Motion for a Downward Departure , pursuant to U.S.S.G. § 5K1.1 . The motion sough t a five

- level departure from a total offense level of 31 to 26. At the sentencing hearing on March 26, 2012 , the District Court granted the Government’s Motio n for Downward Departure ; thus, with a total offense level of 26 and

a c ri minal h istory c ategory of III, the resulting sentencing range was 78 to 97 months. Gallagher sought an additional four

- level departure pursuant to 5K1.1 , which he believed4 was more indicative of his extensive cooperation. The District Court denied his request

. Gallagher then sought a downward variance, on the basis of his cooperation, background, low likelihood of recidivism, and the fact that he posed no danger to t he public

. Th e District Court acknowledged Gallagher’s efforts in cooperating; but, in looking at the other § 3553(a) factors, opined that the seriousness of the underlying offense, the danger of methamphetamine to the public, and Gallagher’s criminal history did not w arrant a variance. The District Court sentenced Gallagher to 78 months’ imprisonment

. Gallagher timely appealed. II. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction pursuan t to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). JURISDICTION AND STANDARD OF REVIEW

We review the procedural and substantive reasonableness of the D istrict Court’s sentencing decision under an abuse of discretion standard. Rita v. United States , 551 U.S. 338, 364 (2007) (citing United State s v. Booker , 543 U.S. 220, 261 (2005)); United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc). We first consider whether the sentencing court committed “significant procedural error, such as failing to [properly calculate] the Guidelines rang e . . . [or] failing to consider the § 3553(a) factors . . . .” Gall v. United States , 552 U.S. 38, 51 (2007). “If there is no procedural error, the second stage of our review is for substantive reasonableness, and we will affirm the sentence unless no reasonable sentencing court would have imposed the same sentence on that5 particular defendant for the reasons the district court provided.” United States v. Wright , 642 F.3d 148, 152 (3d Cir. 2011) ( internal quotation marks omitted). III. Gallagher’s arguments appear to be two

- fold. ANALYSIS

1

A. First, Gallagher a rgues that the Distric t Court abused its discretion by refusing to downwardly depart more than five levels in view of his sterling cooperation over a two

- year period. Second, Gallagher argues that the D istrict Co urt abused its discretion by refusing to grant a downward variance for the same reasons

. Both arguments are without merit.

We lack jurisdiction to review the extent of a district court’s downward departure for substantial assi stance under U.S.S.G. § 5K1.1. United States v. Torres , 251 F.3d 138, 151

- 52 (3d Cir. 2001). We only require that , “in determining the extent of a downward departure for substantial assistance, a sentencing judge must not only conduct a qualitative, fact

- specific analysis but also must expressly indicate the recognition of [U.S.S.G.] § 5K1.1’s factors.” Id. at 152 . The record plainly establishes that the District Court recognized its ability to depart downwardly under U.S.S.G. § 5K1.1 and carefully revi ewed the underlying facts of Gallagher’s substantial assistance. Because the District Court here adhered to the evaluative process established in Torres , the extent of the District Court’s downward departure under § 5K1.1 is not reviewable. Downward Departure

1 Although Gallagher claims to present only “one iss ue” for our review , (Appellant Br. 14) , he alternatively refers to both downward departures and downward variances in his argument. We will address both arguments.6 B. Gallagher also argues that his “level of cooperation over a period of twenty [

- ]

seven months is so above and beyond the usual that it deserved consideration for further downward variance.” (Appellant Br. 20.) This argument is without merit

. In exp laining a sentence, a district court is obligated to “set forth enough to satisfy the appellate court that [it had] considered the parties’ arguments and [had] a reasoned basis for exercisin g [its] own legal decision making authority.” Rita , 551 U.S. at 35 1

. A t the sentencing hearing, the District Court meaningfully considered the § 3553(a) factors, including addressing Gallagher’s substantial level of cooperation, criminal history, potential recidivism, and the seriousness of the underlying crime. The Di strict Court also granted the Government’s motion for a considerable departure

. Thus, the record demonstrates that the District Court did, in fact, consider Gallagher’s extensive cooperative. It was not an abuse of discretion for the District Court to de cline to vary further

. Gallagher’s sentence is not procedurally or substantively unreasonable. Downward Var iance

IV. For the reasons set forth above, we will affirm the Judgment and sentence of the District Court. CONCLUSION