NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-1559

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UNITED STATES OF AMERICA,

 

v.

EMIL FAISON

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-13-cr-00469-001)

District Judge: Honorable Cynthia M. Rufe

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

January 17, 2018

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Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges.

(Filed: February 1, 2018)

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OPINION*

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RESTREPO, Circuit Judge.

Emil Faison appeals as substantively unreasonable the judgment of the United 

States District Court for the Eastern District of Pennsylvania sentencing him to 120

 

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

does not constitute binding precedent.
2

months’ imprisonment, which reflects a downward variance from the bottom of the 

sentencing range prescribed by the United States Sentencing Guidelines. We will affirm.

I

As we write solely for the benefit of the parties, we set out only the facts necessary 

for the discussion that follows. Faison pled guilty to ten counts of distribution and aiding 

and abetting distribution of oxycodone, for his participation in a large-scale drug 

trafficking operation led by Leon Little. Little recruited and paid individuals to become

legitimate patients of a Bala Cynwyd, Pennsylvania doctor in order to procure 

prescriptions of oxycodone and other controlled substances. Little arranged for the 

transportation of these individuals to the doctor’s office and then to multiple local 

pharmacies. Little then arranged for the resale of the drugs obtained from the filled 

prescriptions. 

Faison participated in the operation as a pseudo-patient for Little and two of 

Little’s co-conspirators. Pharmacy records established that Faison filled nineteen

controlled substance prescriptions during ten trips to Philly Pharmacy from November 

2011 to June 2012, which included approximately 2,150 tablets of oxycodone. 

Faison’s guideline range was 188 to 235 months’ imprisonment, based on a 

criminal history category of VI and a total offense level of 31. In determining his 

sentence, the District Court considered Faison’s role in Little’s operation as well as his 

criminal history, which included two prior convictions for drug offenses. The court also 

considered mitigating factors, which included Faison’s significant substance abuse 

history and a personal background that rendered him vulnerable to exploitation by an 
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individual like Little. The District Court then applied a five-level downward variance and 

imposed a below-guidelines sentence of 120 months. Faison appeals on the ground that 

his sentence is substantively unreasonable in light of the shorter sentences imposed on 

other defendants charged in the Little operation.

II1

We review the substantive unreasonableness of a sentence for abuse of discretion. 

Gall v. United States, 552 U.S. 38, 46 (2007). As the party challenging the sentence, 

Faison bears the burden of demonstrating unreasonableness. United States v. Tomko, 562 

F.3d 558, 567 (3d Cir. 2009) (en banc). Review for substantive reasonableness requires a 

“totality of the circumstances” approach, pursuant to which we accord significant

deference to a district court’s “determination that the § 3553(a) factors, on a whole, 

justify the sentence.” Id. at 567–68 (internal quotation marks omitted). Accordingly, “we 

will affirm [a sentence] unless no reasonable sentencing court would have imposed the 

same sentence on that particular defendant for the reasons the district court provided.” Id. 

at 568.

Although 18 U.S.C. § 3553(a)(6) directs the Sentencing Court to consider “the 

need to avoid unwarranted sentence disparities among defendants with similar records 

who have been found guilty of similar conduct,” the courts have recognized that 

cooperation is a circumstance that justifies a disparate sentence. United States v. Parker, 

462 F.3d 273, 278 (3d Cir. 2006). The defendant bears the burden of establishing that he 

 

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

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
4

is similarly situated to other defendants “in terms of the extent of the crime, charges, 

prior history, and jurisdiction.” United States v. Robinson, 603 F.3d 230, 234–35 (3d Cir.

2010).

Here, Faison is unable to establish that he is similarly situated to defendants in 

related cases who received lighter sentences. Unlike the individuals he identifies in his 

brief who cooperated, Faison did not substantially assist the Government in the 

investigation or prosecution of others. Accordingly, Faison was not similarly situated to 

the cooperating individuals that he identifies, nor does his sentence warrant the same 

reduction that those individuals received.

The District Court engaged in a careful and thoughtful analysis of the § 3553(a) 

factors and properly concluded that while Faison’s prior drug offenses coupled with his 

participation in the present offense demonstrated a troubling escalation in criminal 

activity, they did not warrant a sentence within the guideline range. The District Court 

then granted Faison a 68-month downward variance. Because we cannot say that “no 

reasonable sentencing court would have imposed the same sentence on [Faison] for the 

reasons the [D]istrict [C]ourt provided,” Tomko, 562 F.3d at 568, we conclude that the 

sentence was substantively reasonable. 

III

For the foregoing reasons, we affirm the sentence imposed by the District Court.