NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-2773

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UNITED STATES OF AMERICA

v.

JAMES FREEMAN,

 Appellant

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

(D.C. Crim. No. 09-cr-00038-001)

District Judge: Honorable Joseph J. Farnan, Jr.

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Submitted Under Third Circuit LAR 34.1(a)

June 20, 2011

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Before: BARRY, AMBRO and COWEN, Circuit Judges

(Opinion Filed: July 5, 2011)

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OPINION

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BARRY, Circuit Judge

James Freeman appeals from the 240-month sentence that the District Court 

imposed upon him following his guilty plea to possession with intent to distribute cocaine 

and marijuana. We reject each argument raised by Freeman on appeal, and will affirm the 
2

District Court‟s sentence on count one. Because, however, it is apparent to us that the 

District Court‟s sentence on count two exceeded the statutory maximum, we will sua 

sponte vacate the sentence imposed on count two and remand for resentencing on that 

count.

I. Background

On March 23, 2009, Freeman shipped a package from a UPS facility in Tucson, 

Arizona, to an address in New Castle, Delaware. Four days later, when the package was 

en route in Wilmington, Delaware, agents of the Drug Enforcement Administration 

searched the package and discovered a glass table inside. The table contained a 

hydraulically operated trap that concealed 20.75 kilograms of marijuana. 

Freeman was arrested outside his home on March 30, 2009. During a search of his 

home, agents discovered a table in the basement. The table featured a hydraulically 

operated trap concealing 34.07 kilograms of cocaine. Sitting atop the table was a fish 

tank that featured a similar trap concealing $215,450 in United States currency.

On April 16, 2009, a grand jury returned an indictment charging Freeman with one 

count of possession with intent to distribute five kilograms or more of cocaine, in 

violation of 21 U.S.C. § 841(a)(1)(A) and (b)(1)(A), and one count of possession with 

intent to distribute a detectable amount of marijuana, in violation of 21 U.S.C. 

§ 841(a)(1)(A) and (b)(1)(D). On December 17, 2010, pursuant to a plea agreement with 

the government, Freeman pleaded guilty to both counts.
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The plea agreement recited the parties‟ agreement that the base offense level was 

thirty-four, as well as their expectation that Freeman would qualify for a three-level 

reduction for acceptance of responsibility. The plea agreement noted that the maximum 

penalty for count two, the marijuana count, was a term of imprisonment of five years. 

The District Court also explained at the plea hearing that the maximum penalty on count 

two was a term of imprisonment of five years.

At sentencing, on May 13, 2010, the Court confirmed that there were no objections 

to the Pre-Sentence Report (“PSR”), which yielded an advisory guidelines range of 168 to 

210 months. It also heard from defense counsel, who articulated several reasons why 

Freeman should receive a below-Guidelines sentence: he had been severely affected by 

the untimely deaths of his brother and sister, he had a loving relationship with his wife 

and children, and he suffered from numerous physical ailments.

Freeman then addressed the Court:

When my brother had got incarcerated, you know, like, you know, my 

mother she would always say, I feel good that he‟s in jail, you know, as 

opposed to him being on the streets, because of the trial and tribulations that 

people are afflicted with when they are on the streets. And, you know, it 

was such a tragedy when [my brother died in prison], because no one 

thought it would happen, you know, by him losing his life in jail, you know, 

and this had a strong effect on the family, you know.

...

It wouldn‟t be nothing for me, you know, inside a prison system in 

Philadelphia, because I‟m around the people that I know. Now it‟s totally 

different now, you know. I‟m in another state, you know, I‟m totally 

unaware of. I don't know the people that are here, you know, and, you 

know, it‟s different now, you know.
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(63a-67a.) Following remarks by the government, the District Court imposed sentence:

When I came into the courtroom, I was thinking you know, maybe [defense 

counsel is] right, ten years is enough, because I‟m very concerned about 

disparity in sentencing and in over-sentencing people, because I realize one 

day deprived of your liberty is a lot of time. Ten years is a huge amount of 

time. I want you to understand that I don‟t take it lightly.

And I kind of, when I came here I was thinking, Well, maybe ten isn‟t 

enough. The Government‟s 168 months, 14 years is too much. 11 years. 12 

years. 

But as what happens, every once in a while after listening to you talk, I 

became convinced that ten years wasn‟t enough, 12 years wasn‟t enough. 

And, in fact, you‟ve convinced me, just like you had taken responsibility for 

the act [sic], that 14 years isn‟t enough for someone like you. 

What you‟ve convinced me of here today by your articulation is that you 

really need to be incarcerated for a longer period of time, because you have 

no appreciation for the amount of drugs you were distributing and what it 

did to your victims. Your victims aren‟t here in the courtroom. They are 

the young people that used the cocaine. They are the young people that 

used that marijuana and got their lives distorted. You got them off track. It 

doesn‟t account for the victims in law enforcement whose lives you have 

put at risk by being involved in a dangerous business.

Drug trafficking, in the amounts that you were trafficking, and as I reflected 

on you talking about your time in the Philadelphia prison system, it had no 

impact on you, because it was like going on vacation from the 

neighborhood, you were with all your friends.

. . .

I'm going to sentence you to 20 years, 240 months.

Pursuant to the Sentencing Reform Act of 1984, and after considering all 

the factors set forth in 18 United States Code, Section 3553(a) it‟s the 

judgment of the Court that the Defendant, James Freeman, is hereby 

committed to the custody of the Bureau of Prisons, to be imprisoned for a 

term of 240 months on Count I, and a term of 120 months on Count II, with 

the sentences to be served concurrently.
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(75-76a.) On June 2, 2010, the District Court entered a judgment on the docket that 

reflected the identical sentence.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have 

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. When reviewing a 

sentence on appeal, we first ensure that the sentencing court did not commit a serious 

procedural error, “such as failing to calculate (or improperly calculating) the Guidelines 

range [or] treating the Guidelines as mandatory.” Gall v. United States, 552 U.S. 38, 51 

(2007). We then “review the substantive reasonableness of the sentence under an abuseof-discretion standard,” while keeping in mind that “[a]s long as a sentence falls within 

the broad range of possible sentences that can be considered reasonable in light of the 

§ 3553(a) factors, we must affirm.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 

2008).

III. Discussion

Freeman contends that the District Court‟s application of the section 3553 factors 

constituted both procedural and substantive error. Neither contention has merit.

A. Procedural Error

1. Failure to Respond to Defense Arguments

Freeman first contends that the District Court failed to directly respond to several 

of his arguments in support of a below-Guidelines sentence, including his physical 
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disabilities, his close ties with his family, the impact that the death of his two siblings had 

upon him, and the fact that his criminal history was nonviolent. This argument fails, as 

precedent makes clear that a district court‟s failure to respond to each and every section 

3553 argument does not constitute procedural error warranting remand. See Rita v. 

United States, 551 U.S. 338, 358 (2007) (concluding from district court‟s failure to 

respond to certain sentencing arguments that the district court “must have believed that 

there was not much more to say”); United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 

2007) (concluding from district court‟s failure to respond to certain sentencing arguments 

that “the District Judge apparently determined that defendant‟s arguments were simply 

insufficient to warrant a below-Guidelines sentence”).1

2. Failure to Explain Why Guidelines Range Was Inadequate

Freeman further contends that the District Court failed to explain why the range 

recommended by the Guidelines was inadequate, in light of section 3553‟s command that 

the court impose a sentence “sufficient, but not greater than necessary.” This argument is 

meritless, as the District Court spoke at length about its reasons for imposing the sentence 

that it did. The District Court, moreover, was not required to specifically explain why the 

sentence that it selected was the lowest possible sentence that would satisfy the parsimony 

 

1

 We also note that defense counsel informed the District Court that “[t]here‟s nothing in 

my client‟s background that would justify or excuse any of this” (48a) and that the death 

of his sister was “not a justification for anything” (57a). Freeman similarly explained that 

the crime was “totally my fault” and not “my parents‟ with raising me.” (63a.)
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provision. See United States v. Charles, 467 F.3d 828, 833 (3d Cir. 2006) (“To meet the 

requirements of the „Parsimony Provision,‟ he contends, the District Court should have 

noted why a low-end Guidelines-range sentence (37 months) was insufficient to meet 

§ 3553(a)(2)‟s penological goals. By demanding that the Court assume the burden of 

proving that his sentence is not unreasonable, Charles attempts to flip the reasonableness 

requirement on its head.”).

3. Seizure of Drugs

Finally, Freeman contends that the District Court erred in noting the effects that 

narcotics had on the victims of his conduct, as the drugs at issue were seized before they 

could reach users on the street. While Freeman is correct as a factual matter, in context it 

is clear that the District Court was speaking generally about the effects of the drug trade 

on victims. That the government successfully arrested Freeman and seized his drugs 

before they could reach the street hardly supports a plea for leniency.

B. Substantive Reasonableness

Freeman‟s final contention is that the total 240-month sentence, which fell thirty 

months above the top of the Guidelines, was substantively unreasonable in light of the 

mitigating evidence available to the District Court. Yet while Freeman made colorable 

arguments in mitigation, the District Court acted within its discretion in rejecting these 

arguments. See United States v. Tomko, 562 F.3d 558, 568 (2009) (en banc) (“[I]f the

district court‟s sentence is procedurally sound, we will affirm it unless no reasonable 
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sentencing court would have imposed the same sentence on that particular defendant for 

the reasons the district court provided.”).

C. Count Two

Notwithstanding the lack of merit in the arguments that Freeman brings on appeal, 

we will sua sponte vacate and remand with respect to the sentence imposed on count two, 

which charged Freeman with possessing with intent to distribute a mixture containing a 

detectable amount of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). 

Section 841(b)(1)(D) provides that the maximum penalty, “[i]n the case of less than 50 

kilograms of marihuana,” is “a term of imprisonment of not more than 5 years.” 21 

U.S.C. § 841(b)(1)(D).2 The District Court‟s imposition of a ten-year sentence on this 

count fell outside the statutory maximum, and we may notice this error sua sponte. See

United States v. Dixon, 308 F.3d 229, 236 (3d Cir. 2002). Accordingly, we will vacate 

the District Court‟s sentence on count two and remand for resentencing within the 

statutory maximum on that count.

 

2

 Section 841(b)(1)(D) further provides that if a person “commits such violation after a 

prior conviction for a felony drug offense has become final, such person shall be 

sentenced to a term of imprisonment of not more than 10 years.” 21 U.S.C. 

§ 841(b)(1)(D). Although Freeman was twice “adjudged delinquent” as a juvenile for 

narcotics offenses (PSR ¶¶ 34-35), we have held that being adjudged delinquent as a 

juvenile “is not the same as an adult conviction” and thus that “„prior conviction‟ as used 

in 21 U.S.C. § 841(b)(1)(B) does not include adjudications of delinquency under the 

Pennsylvania Juvenile Act.” United States v. Huggins, 467 F.3d 359, 361-62 (3d Cir. 

2006). The logic of Huggins applies equally to (b)(1)(D), and it is presumably for this 

reason that the plea agreement, the District Court at the plea hearing, and the pre-sentence 

report all agreed that the maximum penalty on count two was a term of imprisonment of 

five years. 
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IV. Conclusion

We will affirm the judgment of sentence on count one and vacate and remand for 

resentencing on count two.