NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 17

- 1 559

_____________ UNITED STATES OF AMERICA ,

v. EMIL FAISON

Appellant

______________ On Appeal from the United States Dist rict Court for the Eastern District of Pennsylvania (D.C. No. 2

- 13

- c r - 0 0469

- 001 ) District Judge: Honorable Cynthia M. Rufe

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

January 17 , 201 8

______________ Before: AMBRO , RESTREPO , and FUENTES, C ircuit Judges

.

(Filed: February 1, 2018 )

______________ OPINION *

______________ 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

mo nths ’ imprisonment, which reflects a downward variance from the bottom of the sentencing range prescribed by the United States Sentencing Guidelines. W e 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 distr ibution of oxycodone , for his participation in a large

- scale drug trafficking operation led by Leon Little. Little recr uited and paid individuals to become legitimate patient s 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 loc al 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 - co nspirators. Pharmacy records establish ed that Faison fill ed nineteen controlled substanc e prescriptions during ten trips to Philly Pharmacy from November
2011 to June 2012, which included approximately 2 ,1 5 0 tablets of oxycodone

. Faison’s guideline range w as 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

c onsidered mitigating factors , which included Faison’s significant substance abuse history and a personal background that rendered him vulnerable to exploitation by an3

individual like Little. The District C ourt then applied a five

- level downward variance an d 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

. II 1
We review the substantive u nreasonableness 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 distr ict court provided.” Id

. at 568

. Alt hough 18 U.S.C. § 3553(a)(6) directs t he 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,
pr ior 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 ident ifies in his brief who cooperated , Faison did not substantially assist the G overnment in the investigation or prosecution of oth ers . Accordingly, Faison was not similarly situated to the cooperating individuals that he identifies, nor does his sentence war rant 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 o ffense 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 wou ld 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 Distr ict Court.