2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-18-2011

USA v. Mikell Nesbitt

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4512

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-4512

_____________

UNITED STATES OF AMERICA

v.

MIKELL NESBITT,

 Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 09-cr-00181)

District Judge: Hon. Harvey Bartle, III

Submitted March 18, 2011

Before: BARRY, CHAGARES, and ROTH, Circuit Judges.

(Filed: March 18, 2011)

____________

OPINION

____________

CHAGARES, Circuit Judge.

Defendant Mikell Nesbitt appeals the sentence imposed upon him by the District 

Court after he pleaded guilty to one count of being a felon in possession of a firearm, in 

violation of 18 U.S.C. § 922(g)(1). For the reasons set forth below, we will affirm.
2

I.

Because we write solely for the benefit of the parties, we will only briefly recite 

the essential facts. On August 19, 2009, Nesbitt pleaded guilty to a one-count indictment, 

charging him with possession of a firearm as a previously convicted felon. During his 

plea colloquy, Nesbitt admitted that on October 25, 2008, he visited a female 

acquaintance who is the legal owner of two guns. While in her home, he stole her Glock 

9-millimeter pistol from underneath her bed. Nesbitt was taken into custody on October 

28, 2008, after Philadelphia police recovered this gun during the execution of search and 

arrest warrants at his residence. Nesbitt waived his rights under Miranda v. Arizona, 384 

U.S. 436 (1966), and admitted stealing the Glock pistol.

The Probation Office prepared a Presentence Investigation Report (“PSR”), in 

which it determined that, pursuant to the United States Sentencing Guidelines (the 

“Guidelines”), the base offense level was 24. Nesbitt was subject to a two-level 

enhancement, however, because the firearm was stolen. Taking into account a threelevel reduction for acceptance of responsibility, the total offense level was 23. The PSR 

additionally concluded that Nesbitt qualified for a criminal history category of V, based 

upon his extensive criminal record, which included two drug-trafficking convictions, as

well as convictions for robbery, drug possession, vandalism, and driving under the 

influence. Nesbitt’s advisory Guidelines sentence range was, therefore, 84 to 105 months 

of imprisonment. Both parties agreed that this was the appropriate advisory Guidelines 

range. At the time of sentencing, Nesbitt was serving a state sentence of eight to sixteen 

years of imprisonment for two armed robberies, to which he had also pleaded guilty.
3

At the sentencing hearing, the District Court first heard from the Government. 

The Government drew attention to the fact that Nesbitt began committing crimes at the 

age of 16 and that during the month of October 2008, at the age of 31, Nesbitt had not 

only committed the crime at issue in this case, but also had committed an armed home 

invasion robbery, during which he sexually touched the homeowner, and an armed 

robbery of a 7-Eleven convenience store, in which he made the store clerk kneel on the 

stockroom floor while Nesbitt held a gun to the clerk’s head and demanded money. At 

the time of these offenses, Nesbitt was on bail for two separate crimes — retail theft and 

vandalism.

The Government also reminded the District Court that Nesbitt had attempted to 

provide assistance to the authorities during a proffer session. Although the assistance fell 

short of that which would warrant a Government motion for a downward departure, the 

Government suggested that the District Court could consider it in mitigation under 18 

U.S.C. § 3553(a). Nonetheless, based upon Nesbitt’s extensive criminal record, his

escalating level of violence, and the need for specific and general deterrence, the 

Government asked the District Court to impose a sentence at the top of the advisory 

Guidelines range, which would be served consecutively to the state sentence. 

The District Court then heard from the defense. Nesbitt called his mother as a 

witness on his behalf. She pleaded for leniency, stating that Nesbitt was extremely 

dedicated to his children and provided care and support to the best of his ability to his

extended family. She stated that Nesbitt committed these crimes because he “just got 

mixed up, just got stressed out, he was so stressed not being able to support his children 
4

and his family.” Appendix (“App.”) 55. She testified that another judge threatened to 

incarcerate Nesbitt if he continued to fail to meet his child support obligations. Thus, 

Nesbitt “was trying to get the money from somewhere.” App. 54. She stated that Nesbitt

had started smoking “wet”1and that he wasn’t acting like himself. App. 54-55. During 

this testimony, the District Court interjected on occasion to ask clarifying questions.

Nesbitt’s counsel argued that Nesbitt had a very long history of drug abuse that 

was, in essence, a way of self-medicating otherwise untreated depression. Counsel 

suggested that the combination of drugs, depression, and a need for money led Nesbitt to 

commit the crime for which he was convicted.

Counsel further argued that Nesbitt should not receive a lengthy federal sentence 

because, had Nesbitt been prosecuted in state court for the firearm offense, the additional 

count may not have caused a significant increase in the sentence that he received for the 

armed robberies. Defense counsel also summarized the information that Nesbitt had 

provided to the Government in an attempt to assist with other investigations, arguing that 

these efforts on Nesbitt’s part militated in favor of a lenient sentence. 

Ultimately, Nesbitt’s counsel asked the court to impose either a sentence at the 

very bottom of the advisory Guidelines range to run largely concurrently to Nesbitt’s 

state sentence or to impose a sentence well below the advisory Guidelines range — two 

and one-half years — to run consecutively to his state sentence. Before imposing its 

sentence, the District Court engaged defense counsel in a line of questioning regarding 

 

1

“Wet” is a slang term for a cigarette made from a mixture of marijuana and 

Phencyclidine (“PCP”).
5

the impact that a concurrent, as opposed to a consecutive, sentence might have on

Nesbitt’s ability to receive parole on his state sentence. 

Finally, the District Court heard from Nesbitt himself, who apologized for his 

criminal actions. Nesbitt explained: “I lost my job which caused me not to be able to 

care for my children, my mother and my grandmother, and my bills.... [T]hat hurt my 

pride and my ego. . . . I fell weak to drugs.” App. 73. 

After hearing from the parties, the District Court properly calculated the applicable 

advisory Guidelines sentence range of 84 to 105 months, then imposed a sentence at the 

very bottom of that range to run consecutively with his state sentence, stating in pertinent 

part:

[I]n fashioning a sentence, I must fashion one that is sufficient but not greater than 

necessary. And under Title 18 United States Code Section 3553(a), I must take 

into account certain factors before determining your sentence. Those factors 

include the nature and circumstance of the offenses, and history and characteristics 

of you, the defendant; the seriousness of the offense; the need to promote respect 

for the law; the need to provide a just punishment for the offense; the need to 

afford adequate deterrence to criminal conduct; the need to protect the public from 

further crimes of you the defendant. 

Needless to say, Mr. Nesbitt, the crime for which you have pleaded guilty is a 

serious one. A firearm in possession of a convicted felon is a menace to the city of 

Philadelphia in this region, and to all the citizens who live here. The safety of the 

community is a very critical issue these days, and people such as yourself who are 

carrying firearms undermine the safety of our community, and indeed the general 

welfare of our community. So there’s no doubt that your crime is a serious 

one. . . .

You have a very long criminal history for a man who’s 31 years old. Not only do 

you have several drug convictions, but you also have two robbery convictions. In 

each case, you possessed a firearm. . . .

Your mother talked about your children, how important they are to you. You have 

to remember that that woman who faced a gun and the clerk in the convenience 
6

store who faced a gun on his head, they’re also the children of people. And you 

weren’t thinking about that, and I can’t imagine you would be happy if someone 

did that to one of your children. . . .

You didn’t learn your lesson when you were sentenced previously in the Court of 

Common Pleas for your drug offenses, and then the crimes escalated and turned 

into robbery.

Society has to be protected from you, Mr. Nesbitt. And under the totality of the 

circumstances, I’m going to commit you into the custody of the Attorney General

of the United States for a period of imprisonment of 84 months. That sentence 

will be consecutive to your sentence by the judge of the Court of Common 

Pleas. . . .

It’s truly a sad day, Mr. Nesbitt, and I feel for your mother who was here to 

support you and who did her best. Unfortunately, sometimes in these sentencing 

cases, the family members are punished just as much as the person who commits 

the crime. That’s an unfortunate consequence, and there’s noting that we can do 

about that. So think about that as you serve your sentence. And I hope when you 

are finally released, you will become a law-abiding citizen and take care of your 

children and be a credit to society. But until that time, you will have to serve your 

sentence.

App. 74-78.

II.

The District Court properly exercised jurisdiction over this criminal matter 

pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the District Court’s final 

judgment of sentence pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 

Pursuant to the mandate of United States v. Booker, “[t]he courts of appeals 

review sentencing decisions for unreasonableness.” 543 U.S. 220, 264 (2005). 

According to our post-Booker precedent, district courts must follow a three-step 

sentencing process:

(1) Courts must continue to calculate a defendant's Guidelines 

sentence precisely as they would have before Booker. 
7

(2) In doing so, they must formally rule on the motions of both 

parties and state on the record whether they are granting a departure 

and how that departure affects the Guidelines calculation, and take 

into account our Circuit's pre-Booker case law, which continues to 

have advisory force.

(3) Finally, they are required to exercise their discretion by 

considering the relevant § 3553(a) factors, in setting the sentence 

they impose regardless whether it varies from the sentence 

calculated under the Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (citations, quotations, and 

brackets omitted). On appeal, Nesbitt takes issue with the District Court’s consideration 

of the relevant § 3553(a) factors at the third step of the sentencing process. Nesbitt

contends that the District Court’s failure to consider essential aspects of his history and 

character, as required by 18 U.S.C. § 3553(a)(1), rendered the sentence imposed upon 

him procedurally unreasonable.

III.

We have made clear that a sentence “will be upheld as reasonable if the record as a 

whole reflects rational and meaningful consideration of the factors enumerated in 18 

U.S.C. § 3553(a).” United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006) 

(quotation omitted). This “standard requires a deferential review of the record developed 

by the district court to determine whether the final sentence, wherever it may lie within 

the permissible statutory range, was premised upon appropriate and judicial consideration 

of the relevant factors.” Id. 

“After settling on the appropriate sentence, [the District Court] must adequately

explain the chosen sentence to allow for meaningful appellate review. In other words, it 
8

is not enough for the district court to carefully analyze the sentencing factors. A separate 

and equally important procedural requirement is demonstrating that it has done so.” 

United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010) (quotations and citation 

omitted). As such, the sentencing judge is obligated to “set forth enough to satisfy the 

appellate court that he has considered the parties’ arguments and has a reasoned basis for 

exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 

356 (2007) (citing United States v. Taylor, 487 U.S. 326, 336-37 (1988)). Still, the

District Court need not make explicit findings as to each of the §3553(a) factors “if the 

record otherwise makes clear that the court took the factors into account.” United States 

v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007). A brief discussion will suffice where it is 

apparent from the record that the District Court “determined that defendant’s arguments 

were simply insufficient to warrant a below-Guidelines sentence.” United States v. 

Olfano, 503 F.3d 240, 245 (3d Cir. 2007).

At sentencing, defense counsel argued in favor of a sentence far below the 

advisory Guidelines range, urging the District Court to consider Nesbitt’s personal 

history and characteristics — his depression, his lengthy history of drug abuse, his 

commitment to his family, and his efforts to assist authorities in other investigations — in 

mitigation. On appeal, Nesbitt argues that the District Court’s sentence was procedurally 

unreasonable because it ignored these potentially mitigating factors, instead improperly 

emphasizing the seriousness of the present offense and Nesbitt’s extensive criminal 

history. We disagree.
9

The record summarized above makes clear that the District Court heard and 

considered Nesbitt’s arguments at sentencing. Indeed, the District Court engaged 

Nesbitt’s mother with questions pertaining to her testimony about the defendant’s 

personal circumstances. In our view, such a record does not suggest that the District 

Court disregarded or ignored the evidence in favor of leniency; rather, it demonstrates

that the District Court took account of the mitigating evidence and ultimately came to a 

reasoned, albeit partially implicit, conclusion that, despite Nesbitt’s arguments to the 

contrary, his conduct over the years was that of a serious recidivist, not that of a person 

who had merely lost his way, and that certain § 3553(a) factors — namely, the 

seriousness of the offense, the need for individual deterrence, and the interest in 

protecting the public from the defendant’s future crimes — substantially outweighed the 

potentially mitigating factors that Nesbitt pointed to in support of a below-Guidelines 

sentence. In other words, in finding that a sentence at the bottom of the Guidelines range 

was sufficient, but not greater than necessary to effect the appropriate amount of 

deterrence and to reflect the seriousness of the crime, the District Court implicitly 

expressed a reasoned judgment that the arguments it had heard and considered in favor of 

leniency “were simply insufficient to warrant a below-Guidelines sentence.” Olfano, 503 

F.3d at 245. The District Court having premised the sentence on appropriate and judicial 

consideration of the relevant factors, we cannot conclude that the sentence imposed upon 

Nesbitt was procedurally unreasonable.

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

sentence.