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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 2877

_____________ UNITED STATES OF AMERICA

v. THOMAS DAVID WINEBARGER, Appellant

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

. 09

- cr - 00 279

- 1 ) District Judge: Honorable Richard P. Conaboy

______________ Submitted Under Third Circuit LAR 34.1(a)

March 18, 2013

____________ __ Before: SMITH, GREENAWAY, JR. , and VAN ANTWERPEN, Circuit Judges

.

(Opinion Filed: March 19, 2013 )

______________ OPINION

______________ GREENAWAY, JR., Circuit Judge

. Thomas David Winebarger (“Winebarger”) challenges the sentence imposed by
the Di st rict Court, arguing that the District Court erred by failing to apply the factors set2

forth in 18 U.S.C. § 3553(a). 1 Since, as we explained in United States v. Winebarger , 664 F.3d 388 , 389 (3d Cir. 2011), the District Court could not consider the § 3553( a) factors in connection with the Government‟s motio n filed pursuant to 18 U.S.C. § 3553(e), 2 we conclude tha t the District Court did not abuse its discretion and w ill affirm Winebarger‟s judgment of conviction

. I. Background The facts underlying this case were set forth in detail in our prior opinion , which vacated Winebarger‟s sentence and remanded the case

. Winebarger , 664 F.3d at 390

- 92. We need not repeat them here. On remand, the District Court resentenced Winebarger. During the re sentencing hearing, the Government provided support for its § 3553(e) motion. D efense counsel then argued that , in addition to those points , the Court should consider the § 3553(a) factors , which counsel then discussed in detail

. After concluding that it could n ot consider the § 3553(a) factors based on our decision, t he District Court accepted the Government‟s recommendation and imposed a sentence of 135 months, well below the statutory mandatory minimum of 180 months.

1 Section 3 553(a) sets forth various factors that district courts should consider when imposing sentence.

2 Section 3553(e) provides in relevant part that “[u] pon motion of the Government, the court shall have the authority to impose a sentence below a level estab lished by statute as a minimum sentence so as to reflect a defendant ‟ s substantial assistance in the investigation or prosecution of another person who has committed an offense. ” 18 U.S.C. § 3553(e).3 I I. Analysis 3
As he did before the District Court, Winebarger now argues that consideration of the § 3535(a) factors at his resentencing was appropriate where the Government move d for a sentence below the statutory minimum. In light of our prior decision in this case, Win ebarger‟s argument lacks merit. In that opinion, w e held “ that the limited statutory authority granted by 18 U.S.C. § 3553(e) does not authorize a district court to reduce a sentence below a statutory minimum based on considerati ons unrelated to that defe ndant‟ s substantial assistance to law enforcement authorities. ” Winebarger , 664 F.3d at 397. We then set forth the procedure to follow in cases involving mandatory minimum sentences and § 3553(e) motions: “ the court

. . . start [s] with the mandatory mi nimum sentence as a baseline and then, after granting the § 3553(e) motion,

. . . determine [s] th e extent to which the defendant‟ s cooperation warranted a divergence from that baseline. ” Id.
We also noted that § 5K1.1 of the Sentencing Guidelines “ set s out an instructive, though not exhaustive, list of factors a sentencing court should examine when assessing that assistance and determining how far below a statutory minimum it will sentence a defendant pursuant to § 3553(e). ” Id. We acknowledged that, pursuant to our decision in United States v. Casiano , 113 F.3d 420 (3d Cir. 1997) , the extent of the departure could be reduced based on other factors not enumerated in § 3553(e) or Section 5K1.1.

3 The District Court had jurisdiction under 18 U.S.C. § 3231. We have4

However, those factors cannot increase the extent of the departure. Winebarger , 664 F.3d at 397. We review a district court‟s sentence in two stages: first, we ensure that the district court committed no significant procedural error; second, we consider whether or not the sentence is substantively reasonable

. United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc). In evaluating an appeal of a sentence, we review the District Court‟s sentencing decision under an abuse of discretion standard. Gall v. United States , 552 U.S. 38, 51 (2007); Tomko , 562 F.3d at 567. On remand, the District Court carefully followed our instructions. The Court started with the mandatory minimum sentence, granted the Government‟s § 3553(e) motion, and then determined the extent of the divergence warranted by Winebarg er‟s assistance. As such, t he District Court committed no procedural error. Similarly, we find that the District Court‟s sentence was substantively reasonable. The Government explained Winebarger‟s assistance, as well as the increased danger to Winebarg er in prison created by the publication of this Court‟s opinion. Relying upon that representation, the District Court granted a reduction of sentence approximately 25% below the statutory mandatory minimum sentence. We find that decision reasonable.
W inebarger‟s reliance on United States v. Booker , 543 U.S. 220 (2005) , confuses the role of sentencing statutes and the Sentencing Guidelines. Booker held that the Sentencing Guidelines are advisory; nowhere in that opinion did the Supreme Court
jurisdiction, pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.5

s uggest th at sentencing statutes, properly enacted by Congress, are advisory. In accord with this view , we have held that unlike the S entencing G uidelines, which are advisory, statutorily established sentences are mandatory. See , e.g. , United States v. Reevey , 631 F.3d 110 , 113 (3d Cir. 2010) (“ unlike the advisory sentencing guidelines range, „ the statutory minimum drug trafficking penalty in 21 U.S.C. § 841(b)

. . . is mandatory ‟ ” (quoting United States v. Gunter , 462 F.3d 237, 248 (3d Cir. 2006)))

. 4
III. Conclus ion On remand, the District Court carefully followed our instructions and imposed a sentence that was both procedurally and substantively reasonable. We find the Court did not abuse its discreti on. We will affirm the judgment of conviction

.

4 Similarly, Winebarger seeks to invoke the Supreme Court‟s pronouncement in Pepper v. United States , 131 S.Ct. 1229 (2011), to his advantage, but to no avail. In Pepper , the Supreme Court affirmed the notion that, pursuant to both § 3661 and § 3553(a), “ a district court at resentencing may con sider evidence of the defendant‟ s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downwa rd variance from the now

- advisory Federal Sentencing Guidelines range. ” Pepper , 131 S.Ct. at 1236. This holding is a far cry from what Winebarger seeks to utilize here. Pepper does not address statutory mandatory minimums. As such, the holding of Peppe r provides no solace here.