2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-19-2013

USA v. Thomas Winebarger

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2877

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NOT PRECEDENTIAL

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-00279-1)

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 District Court, arguing that the District Court erred by failing to apply the factors set 
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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 motion filed pursuant to 18 U.S.C. 

§ 3553(e),2 we conclude that the District Court did not abuse its discretion and will 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 resentencing

hearing, the Government provided support for its § 3553(e) motion. Defense 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 not consider the § 3553(a) factors based on our 

decision, the District Court accepted the Government‟s recommendation and imposed a 

sentence of 135 months, well below the statutory mandatory minimum of 180 months. 

 

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Section 3553(a) sets forth various factors that district courts should consider 

when imposing sentence. 

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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 established 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).
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II. Analysis3

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 moved

for a sentence below the statutory minimum. In light of our prior decision in this case, 

Winebarger‟s argument lacks merit. In that opinion, we 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 considerations unrelated to that 

defendant‟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 minimum 

sentence as a baseline and then, after granting the § 3553(e) motion, . . . determine[s] the 

extent to which the defendant‟s cooperation warranted a divergence from that baseline.” 

Id. 

We also noted that § 5K1.1 of the Sentencing Guidelines “sets 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. 

 

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have 
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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 Winebarger‟s 

assistance. As such, the 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 Winebarger 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. 

Winebarger‟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.
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suggest that sentencing statutes, properly enacted by Congress, are advisory. In accord 

with this view, we have held that unlike the Sentencing Guidelines, 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))).

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III. Conclusion

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 discretion. We will affirm the judgment of conviction. 

 

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 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 consider evidence of the defendant‟s 

postsentencing rehabilitation and that such evidence may, in appropriate cases, support a 

downward 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 Pepper provides no solace here.