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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 10-1528

UNITED STATES OF AMERICA

v.

JUSTIN DENNIS,

 

Appellant.

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D. C. No. 1-09-cr-00270-001)

District Judge: Hon. Sylvia H. Rambo

Submitted under Third Circuit LAR 34.1(a)

on November 5, 2010

Before: SCIRICA, RENDELL and ROTH, Circuit Judges

(Opinion filed: January 20, 2011)

O P I N I O N

ROTH, Circuit Judge:

Justin Dennis appeals the District Court‟s February 16, 2010, judgment of 

sentence. Dennis contends that his sentence is substantively unreasonable, because the 
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District Court abused its discretion in evaluating his criminal history under the United 

States Sentencing Guidelines (U.S.S.G. or the Guidelines). For the following reasons, we 

will affirm the judgment of sentence.

I. Background

In the course of investigating crack cocaine distribution in Harrisburg, 

Pennsylvania, federal and state law enforcement agents became interested in Dennis. 

During the summer of 2009, agents used confidential informants to purchase crack 

cocaine from Dennis on four different occasions: one ounce on June 10; seven grams on 

July 10; seven grams on July 29; and fourteen grams on August 11. Dennis was arrested 

on August 24, 2009. Dennis subsequently waived his Miranda rights and admitted that 

he had been obtaining and distributing roughly an ounce of crack cocaine per week since 

January 2009.

Dennis later consented to a written plea agreement, filed October 9, 2009. Before 

the District Court, on October 19, 2009, Dennis pleaded guilty to a superseding 

information, which charged him with distributing and possessing, with intent to 

manufacture and distribute, cocaine base (21 U.S.C. § 841(a)(1)). Although Dennis 

acknowledged his earlier admission that he had been selling crack cocaine since January 

2009, Dennis asserted before the District Court that this admission was inaccurate and 

that he had only been selling since May 2009. 

After Dennis pleaded guilty, the Probation Office prepared the PSR and calculated 

Dennis‟s potential sentencing range under the 2009 Guidelines as 188 to 235 months. 

Based on Dennis‟s previous admission that between January 2009 and his arrest on 
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August 24, 2009 he was buying and distributing approximately one ounce of crack 

cocaine per week, the PSR estimated that Dennis had handled 794 grams of crack 

cocaine. 

Dennis filed three primary objections to the PSR: (1) that the PSR improperly 

estimated the drug weight Dennis had distributed, as the PSR had relied on Dennis‟s 

allegedly inaccurate admission that he had been selling roughly an ounce of crack 

cocaine per week from January 2009 to the time of his arrest; (2) that the District Court 

should grant a variance based on the sentencing disparity between crack cocaine and 

powder cocaine; and (3), that the District Court should grant a variance because the 

resulting criminal history category overstated the seriousness of Dennis‟s past criminal 

conduct. 

At the sentencing hearing, the District Court reduced the amount of crack cocaine 

to the estimated amount of drugs distributed from May to August. The court subtracted 

three points for Dennis‟s acceptance of responsibility in entering a guilty plea. As for 

Dennis‟s criminal history, the court assessed Dennis‟s past convictions and alleged 

criminal conduct on the record and denied his request to reduce his criminal history

category as it stood in the PSR. Based on its conclusions, the court assigned an advisory 

guidelines range to Dennis of 151 to 188 months with three years of supervised release.

The court ultimately decided to depart downward from the Guidelines, and 

imposed a sentence of 140 months, to be followed by three years of supervised release. 

The court explained that it had departed from the Guidelines by one offense level on 

account of the disparate treatment for crack cocaine and powder cocaine under the 
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Guidelines, and “to avoid unwarranted sentencing disparities among [d]efendants which 

this Court has consistently applied a one-level variance.” 

Dennis appealed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 18 U.S.C. §§ 1291 and 3742(a). 

We review a challenge to the reasonableness of a sentence under an abuse-ofdiscretion standard, with certain adjustment for strictly factual or legal conclusions. 

United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc).

III. Discussion

“After the Supreme Court‟s decision in United States v. Booker, 543 U.S. 220, 

(2005), we review sentences for „reasonableness.‟” United States v. Lychock, 578 F.3d 

214, 217 (3d Cir. 2009). We conduct our review in two stages, considering first the 

procedural reasonableness, and second, the substantive reasonableness of a sentence. 

Tomko, 562 F.3d at 567; see also United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008) 

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). 

Dennis does not contest the procedural reasonableness of his sentence. Rather he 

contends that his sentence was substantively unreasonable for two reasons: (1) that his 

sentencing range under the Guidelines overstates the seriousness of his criminal history 

and (2) that a subsequent amendment to the Guidelines – the deletion of U.S.S.G. § 

4A1.1(e), a section which added points to the defendant‟s criminal history depending on 
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the recency of certain past criminal conduct – would have lowered his criminal history 

category had it been applied to his sentencing determination.1

Dennis‟s argument that his sentence is substantively unreasonable because his 

Guidelines range, as a qualitative matter, should have amounted to a lesser criminal 

history category is unavailing. The District Court adequately considered the totality of the 

circumstances, including the applicable Guidelines range and the § 3553(a) factors, in 

imposing the sentence. The District Court noted that Dennis had amassed six drugrelated crimes over a short period of time and had engaged in a broader pattern of 

criminal conduct, which taken together evidenced a “total disregard for the law.” 

Further, the District Court, upon Dennis‟s prompting, recommended that he receive drug 

treatment to deter him from future criminal conduct, and granted a downward departure 

of one offense level based on the disparity between crack cocaine and powder cocaine 

and to avoid unwarranted sentencing disparities. We conclude that the District Court 

imposed a substantively reasonable sentence.

Although Dennis asserts in his brief and 28(j) letter that subsequent amendments 

to the Guidelines – in particular the elimination of U.S.S.G. § 4A1.1(e) (recency points) 

and changes made in response to the Fair Sentencing Act of 2010, PL 111-220, 1234 Stat. 

2372 (Aug. 3, 2010) – might have altered his Guidelines range, we review the “propriety 

 

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To the extent that Appellant asserts an argument that the District Court should 

have granted a downward departure under § 4A1.3(b) of the Guidelines, we do not have 

jurisdiction to review such discretionary decisions, “unless the record reflects that the 

district court was not aware of or did not understand its discretion to make such a 

departure.” United States v. Grier, 585 F.3d 138, 141 (3d Cir. 2009) (internal quotation 

omitted); see also United States v. Jones, 566 F.3d 353, 368 (3d Cir. 2009). It is evident 

that the District Court was aware of its discretion to depart from the Guidelines.
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of a sentence” based on the Guidelines in effect at the time of sentencing. Wise, 515 F.3d 

at 220. We, therefore, conclude that the sentence the District Court imposed was well 

within its discretion. 

IV. Conclusion 

For the reasons stated above, we will affirm the District Court‟s judgment of 

sentence.