2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-16-2010

USA v. Peter Everett

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3902

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Recommended Citation

"USA v. Peter Everett" (2010). 2010 Decisions. Paper 1491.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1491
The Honorable Louis H. Pollak, Senior District Judge for the United States *

District Court for the Eastern District of Pennsylvania, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-3902

____________

UNITED STATES OF AMERICA,

 Appellee,

v.

PETER EVERETT,

a/k/a

Hailey,

 Appellant.

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Number: 07-cr-00340)

District Judge: Honorable Edwin M. Kosik

____________

Submitted Under Third Circuit LAR 34.1(a)

April 15, 2010

Before: SLOVITER and HARDIMAN, Circuit Judges

and POLLAK, District Judge *

(Filed: April 16, 2010)
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____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Peter Everett challenges the reasonableness of his sentence and the District Court’s

denial of his motion for a mitigation specialist. We will affirm.

I.

Because we write for the parties, we recount only the essential facts. In September

2007, Peter Everett and nineteen others were indicted for conspiracy to distribute in

excess of one kilogram of heroin in violation of 21 U.S.C. § 846. Everett also was

charged with possession with intent to distribute and distribution of heroin in violation of

21 U.S.C. § 841(a)(1). In April 2009, Everett pleaded guilty to the conspiracy charge and

the Government agreed to drop the other charges.

The Presentence Investigation Report (PSR) found that Everett’s base offense

level was 26. It recommended downward departures of two-levels for meeting the safety

valve requirements pursuant to § 2D1.1(b)(11) of the Sentencing Guidelines and threelevels for acceptance of responsibility under § 3E1.1(a) and (b), for a total offense level

of 21. In August 2009, after reviewing the PSR, Everett’s counsel filed a motion to

employ a mitigation specialist to assist with sentencing preparation. The District Court

summarily dismissed the motion because the case was not unusual.
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate 1

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

3

The Government moved for, and the District Court granted, an additional twolevel downward departure for substantial assistance pursuant to USSG § 5K1.1. In the

final analysis, Everett’s offense level was 19 and his criminal history category was I,

leading to an advisory Guidelines imprisonment range of 30-37 months. The District

Court sentenced Everett to 30 months imprisonment, three years supervised release and a

$100 special assessment. Everett timely appealed.1

II.

Everett raises several challenges to his sentence. First, he claims the District Court

committed procedural error by ignoring his history and characteristics. Specifically,

Everett’s counsel and witnesses told the District Court that: this was his first offense, he

made a mistake, he now had a family, he was gainfully employed, and he would not

commit another crime. The District Court responded that it would “take into account the

very things that [Everett’s counsel] addressed” but noted that all twenty co-defendants

have families. JA 32-33. Near the end of its analysis, the District Court also explained

that although it disagreed with Everett’s family members’ pleas for minimal jail time, it

was doing so in good faith. The District Court was not required to say more. See United

States v. Rita, 551 U.S. 338, 356-57 (2007); United States v. Tomko, 562 F.3d 558, 568

(3d Cir. 2009) (en banc).
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Everett next claims the District Court ignored the § 3553(a)(6) requirement to

avoid sentencing disparities because it contrasted his conduct with others who were

sentenced for dissimilar conduct in the case, instead of comparing him to others who were

sentenced for the same conduct. See 18 U.S.C. § 3553(a)(6) (requiring a sentencing court

to consider “the need to avoid unwarranted sentence disparities among defendants with

similar records who had been found guilty of similar conduct”). At one point, the District

Court compared all twenty co-defendants based on their relative levels of culpability and

their family ties. The District Court also compared Everett to the most analogous codefendant—Daniel Torres. Torres had a lower base Guidelines range but substantially

similar participation in the conspiracy and also received a two-level downward departure

for substantial assistance. Because of their similarities, the District Court deemed it just

to sentence Everett to the same amount of prison time as Torres—30 months. This was

not an abuse of discretion.

Although we have stated that § 3553(a)(6) promotes a concern for “national

uniformity in sentencing rather than uniformity among co-defendants in the same case,”

we also noted that it “does not prohibit” a sentencing court from considering sentencing

disparities among co-defendants. United States v. Parker, 462 F.3d 273, 277 (3d Cir.

2006). Here, the District Court considered co-defendant disparities based on permissible

factors, including: family connections, extent of cooperation with authorities and

culpability in the criminal conspiracy. See id. (allowing co-defendant comparisons as
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long as the “factors considered by the sentencing court are not inconsistent with those

listed in § 3553(a) and are logically applied to the defendant’s circumstances”). The

District Court even agreed with Everett that § 3553(a) does not mandate parity among codefendants, but explained that “the object of the sentencing guidelines [is] to ensure as

much parity in sentencing as possible.” JA 37.

Finally, Everett claims the District Court treated the Guidelines as mandatory. We

find no support in the record for this assertion. The District Court sentenced Everett to 30

months based on its sense of fairness and parity. At sentencing, the District Court

imposed a within-Guidelines sentence after it heard Everett’s counsel state that the

Guidelines were advisory (JA 37) and heard the prosecutor’s argument that a withinGuidelines sentence would be reasonable (JA 34-36). The District Court’s comment on

the Guidelines’ purpose—to increase the sense of justice in federal sentencing by having

all federal courts across the country consider the same sentencing factors, including the

amount of drugs attributable to a defendant—does not suggest, much less establish, that

the District Court was laboring under a misapprehension that the Guidelines are still

mandatory years after the Supreme Court’s landmark decision in United States v. Booker,

543 U.S. 220 (2005).

For the foregoing reasons, the District Court did not err in sentencing Everett.
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III.

Everett also contends the District Court erred in denying him a mitigation

specialist. Because he was “safety-valve eligible” under 18 U.S.C. § 3553(f) and had

unique circumstances, Everett insists he needed a mitigation specialist to present his case

in the most persuasive light.

Everett was not entitled to a mitigation specialist, however, because he did not

demonstrate that the specialist was “necessary.” 18 U.S.C. § 3006A(e). “The decision to

grant or deny a motion [for expenses to hire a mitigation specialist] is one committed to

the discretion of the district court, and a district court’s decision will be disturbed on

appeal only if it constitutes an abuse of discretion.” United States v. Roman, 121 F.3d

136, 143 (3d Cir. 1997). The only arguments presented below for necessity were to

ensure (1) compliance with the stated purpose of the “safety valve” provision and (2)

assistance from an expert in matters related to § 3553(a). As the District Court explained

in its order denying the motion, those two aspects show “nothing unusual about this case

to warrant granting the motion.” This finding was not an abuse of the District Court’s

discretion.

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.