NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-3514

_____________

UNITED STATES OF AMERICA

v.

HAKIM WILBURN,

 Appellant 

__________

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. No. 3-18-cr-00265-001)

District Judge: Honorable Robert D. Mariani 

_______________

Submitted Under Third Circuit L.A.R. 34.1(a)

March 14, 2022

Before: JORDAN, KRAUSE and PORTER, Circuit Judges

(Filed: March 17, 2022)

_______________

OPINION

_______________

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent. 
2

JORDAN, Circuit Judge.

Hakim Wilburn appeals the sentence he received after pleading guilty to

conspiring to illegally distribute drugs. He claims that, to avoid an excessive sentence, he 

should have been simultaneously sentenced for violating his supervised release on an 

unrelated offense. He did not make that argument in the District Court, and, it appears, 

for good reason: it is unsupportable. It certainly cannot survive plain-error review. We 

will thus affirm.

I. BACKGROUND 

Wilburn and his co-conspirators1came to the attention of the Federal Bureau of 

Investigation in June 2015, when agents discovered that Wilburn was involved in the 

trafficking and sale of heroin and other illegal narcotics throughout northeastern 

Pennsylvania. 

Agents worked closely with cooperating witnesses to discover the extent of

Wilburn’s drug-trafficking business. They learned that he obtained heroin in New York 

City and took it to Newark, New Jersey. At that point, he paid a relative to take the drugs 

to Wilkes-Barre, Pennsylvania. Wilburn stored the drugs at his home in Wilkes-Barre 

and at storage facilities in the area. 

1 Wilburn’s wife, Danielle Moorer, was charged alongside him as a co-conspirator. 

Moorer pled guilty to conspiracy to distribute and to possess with intent to distribute over 

one kilogram of heroin and cocaine, in violation of 21 U.S.C. § 846, and was sentenced 

to 127 months’ imprisonment. 
3

Agents eventually conducted thirteen controlled purchases of heroin and cocaine 

from Wilburn and his wife. Each of the controlled purchases was recorded and 

surveilled. During those transactions, they learned that Wilburn was also using heroin as 

a form of compensation for the employees of his construction company. 

Eventually, in August 2018, a grand jury in the United States District Court for the 

Middle District of Pennsylvania returned a fourteen-count indictment charging Wilburn 

with conspiracy to distribute and to possess with intent to distribute one kilogram or more 

of heroin and an unspecified amount of cocaine, in violation of §§ 841(b)(1)(A)(i) and 

846 (Count 1), and with thirteen counts of possession with intent to distribute and 

distribution of heroin and cocaine, and aiding and abetting thereof, in violation of 21 

U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Counts 2-14). Agents executed search 

warrants the next day and recovered forty-five bricks of heroin and fentanyl and firearms

from Wilburn’s home and a storage facility. Wilburn was arrested and pled not guilty. 

This was not his first run-in with the law. While he was dealing drugs in 

Pennsylvania, he was on supervised release for an unrelated 2003 federal conviction for 

dealing drugs in New Jersey. The terms of his supervised release prohibited him from

committing another federal, state, or local crime and from moving out of New Jersey. 

Because he violated those terms, Wilburn faced the potential of sentencing on two 

separate criminal matters: the drug-trafficking offenses charged in the 2018 indictment, 

and his supervised release violation. Responsibility for handling the latter was 

transferred from the District of New Jersey to the Middle District of Pennsylvania. 
4

About a year after his indictment, the government filed a one-count superseding 

information charging Wilburn with conspiracy to distribute over one kilogram of heroin 

and over 500 grams of cocaine. Pursuant to a plea agreement, he pled guilty to that

information in exchange for the government’s promise to recommend that the sentencing 

guidelines calculation for his crime be based on his having distributed between one and 

three kilograms of heroin and between 500 grams and two kilograms of cocaine. 

Wilburn faced a mandatory minimum sentence of fifteen years under 21 U.S.C. 

§ 84l(b)(l)(A), and a recommended guidelines range of 235 months to 293 months’ 

imprisonment. At the sentencing hearing, the District Court imposed a sentence of 198 

months, which was thirty-seven months below the low end of Wilburn’s guidelines range

but eighteen months above the mandatory minimum. Wilburn did not object to that 

sentence before the District Court but instead timely appealed it.

2

Later, while his appeal was pending, the District Court separately sentenced him to 

a thirty-six-month term of imprisonment for violating the conditions of his 2003 

conviction in New Jersey, to run consecutively with his 198-month sentence for the 

instant offense. 

2 The government says that Wilburn made objections with respect to certain 

sentencing enhancements, but the record reflects that, while defense counsel had 

indicated before sentencing that objections would be made, none were. Perhaps his

below-guidelines-range sentence prompted that decision. 
5

II. DISCUSSION3

Wilburn’s argument is simple, and consists of three paragraphs: he says that the 

District Court should have simultaneously sentenced him for both the present offense and 

his supervised release violation. He explains that the Court’s “[f]ailure to impose 

sentencing on both matters left [him] with uncertainty as to the final total term of 

imprisonment for which he would be responsible.” (Opening Br. at 11.) Because 

Wilburn did not object below, we review for plain error.

Under plain-error review, Wilburn must prove that (1) the District Court erred, 

(2) the error was clear or obvious, (3) it affected his substantial rights, and (4) it 

“seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” 

United States v. Olano, 507 U.S. 725, 732-36 (1993) (citation omitted). Here, the District 

Court did not err, much less plainly so, by sentencing Wilburn separately for his present 

offense and his supervised release violation. 

We have required simultaneous sentencing for a single term of imprisonment

when the same conduct provided the basis for two offenses under consideration at once. 

In United States v. Gomez, 593 F.2d 210, 212-15 (3d Cir. 1979) (en banc), for instance,

we vacated the district court’s separate sentences for two counts – possession with intent 

to distribute and actual distribution – because both convictions stemmed from the same 

transaction. We held that Congress intended for crimes arising under the same statutory 

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

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
6

scheme and out of the same criminal conduct to be sentenced as one. See id. at 212-14

(analyzing two convictions both based on 21 U.S.C. § 841(a)(1)); see also United States 

v. Rosenberg, 806 F.2d 1169, 1176 (3d Cir. 1986) (“Courts are reluctant to impose two 

penalties for the same criminal conduct absent clear congressional intent otherwise[.]”).

Gomez has no relevance here, because Wilburn’s conspiracy conviction and 

supervised release violation arose out of entirely separate instances of unlawful conduct, 

criminalized under different statutes. The sentence now on appeal relates to the drugtrafficking enterprise he ran in Pennsylvania from 2015 through 2018. In contrast, his 

supervised release violation relates to his drug distribution activities in New Jersey years 

earlier.

4

 The District Court thus did not err by sentencing Wilburn as it did.

III. CONCLUSION

For the foregoing reasons, we will affirm.

4 The government interprets Wilburn’s brief as also challenging the substantive 

reasonableness of his sentence by arguing that it was an abuse of discretion to sentence 

him above the mandatory minimum. We see no indication that Wilburn actually raises 

such an argument. To the extent he does make that unpreserved argument, however, it 

does not persuade us that the District Court substantively erred.