NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________
No. 11

- 3836

______________ UNITED STATES OF AMERICA

v.

JERMAINE LOUIS a/k/a Big J,
Appellant

______________ On Appeal from the United States District Cour t for the District of New Jersey (D.C. C rim

. No. 3

- 10

- 00 470

- 001 ) Honorable Peter G. Sheridan , District Judge

______________ Submitted under Third Circuit LAR 34.1(a) October 2 , 2012

BEFORE: FUENTES, FISHER and GREENBERG, Circuit Judges
(Filed: October 3, 2012 )

______________ OPINION OF THE COURT

______________ GREENBERG, Circuit Judge

This matter comes on before this Court on an appeal from the sentence imposed in
a judgment of conviction and sentence entered on October 7, 2011, on the basis of the
defendant Jermaine Louis’s plea of guilty to an indictment charging him under 18 U.S.C. .2 § 922(g)(1 ) with unlawfully possessing a firearm after having been convicted of a crime
punishable by imprisonment for a term exceeding one year

. Based on Louis’s offe nse
level and his criminal history category and taking into account the applicable statutory

maximum sentenc e allowable
, t he District Court calculated Louis’s custodial guidelines
range as 110 to 120 months. The Court, however, varied downwards from that range and
imposed a custodial sentence of 98 months to be followed by a three

- year term of
supervised release . This appeal followed.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have
jurisdiction under 28 U.S.C . § 1291 and 18 U .S.C. § 3742 (a) . L ouis views the issue on
this appeal as involving procedural unreasonableness. He thus contends that we review

the sentence for an abuse of discretion
, citing Gall v. United States

After hearing lengthy oral argument, the District Court gave the following
explanation when it imposed the sentence. , 552 U.S. 38, 51, 128

S.Ct. 586
, 597 (2007), and the gov ernment agrees that he correctly sets forth the standard

of review.

So, at any rate, the concern that I have is Mr. Louis’ background. I t seems that, as [defense counsel] says, he had a deplorable childhood; he was living in a car; his mother was a crack addict; he can only read a little English, so he has very few skills in terms of being able to read and write; and his father had no real significant involvement with him during his youthful years, and things of that nature. Which the extent of it in this case seems to be very pervasive in Mr. Louis’ personality. And it seems that that should be weighed in to the sentencing here in some fashion.

Also, one of the [section] 3553 factors is that we weigh the circumstances of the offense, and the history and characteristics of the defendant. So, although we’ve considered under the sentencing guidelines3 to make Mr. Louis a criminal history six, that six doesn’t really reflect the other part of his personality traits or how he was brought up.
So, the Court thinks that needs to be somehow weighed in on this. Based on that, I’m going to vary downward from a 25, level six, to a 23, level six, to consider Mr. Louis’ background.

The other factors we consider when we sentence a defendant are both his nature and circumstances of the offense, the characteristic s of the defendant; and the sentence must and in this case definitely needs to be serio us, because he was in possession of a weapon and he was a prior felon; and the sentence must respect the law; it must provide just punishment; and it must provide adequate deterrence, and as well as protect the public from further crimes of the defendant.
So, in this case we have a possession of a weapon, which is very serious. And it seems that Mr. Louis was an ongoing criminal, a recidivist as [government counsel] called him, and that needs to be considered as well. So, a significant punishment must b e entered in this case.
So, for those reasons, and pursuant to the Sentencing Reform Act, it’s my judgment that Mr. Louis is hereby committed to the custody of the Bureau of Prisons, for a term of 98 months. And he shall be placed on supervised release for a term of three years.

App. at 145

- 46.

Louis summarized his contentions in his opening brief on this appeal as follows.
Jermaine Louis argued [in the District Court] that the firearms Guideline did not reflect an exercise of the United States Senten cing Commission’s institutional expertise, resulting in an excessive sentencing range in his case. He made the argument in writing and at sentencing. He amply supported the argument. And he explained why the flaws in the Guideline mattered in his partic ular case. The District Court listened to the argument, but failed to acknowledge it, much less express any meaningful consideration of it.

Th is Court [of Appeals] has repeatedly stated that sentencing courts need not independently analyze the history o f a Guideline to ensure that it reflects the Sentencing Commission’s expertise. At the same time, however, this Court requires a sentencing court to meaningfully consider all colorable challenges to a Guideline sentence. A fair reading of this Court’s4 pr ecedent, therefore, reveals that this Court has not exempted arguments about the Guidelines themselves from the meaningful consideration and response requirement where a defendant challenges the applicability of the Guidelines under the specific circumstan ces of his case. By remaining silent in the face of such an argument, the District Court abdicated its responsibility to meaningfully consider Mr. Louis’s challenge. The District Court’s silence constitutes procedural error requiring reversal and remand.
Appellant’s br. at 15

. The government summarized its answer to Louis’ s argument as follows:
Despite receiving a sentence below the Guidelines range, Louis filed a 41

- page brief to this Court, arguing solely that the District Court procedurally erred b y not delving into the Sentencing Commission’s rationale for amending (with Congressional approval) a Guideline provision over two decades ago . But over two years ago , this Court definitely held that sentencing courts need not engage in such analysis, Uni ted States v. Lopez

- Reyes , 589 F.3d 667, 671 (3d Cir. 2009), and this Court (and others) have repeatedly re

- affirmed that holding in both precedential and non

precedential opinions. Despite the central importance of Lopez

- Reyes to this appeal, Louis discu sses it only briefly, and does not do so until page 36 of his brief. Because Lopez

- Reyes controls, this Court should reject Louis’ challenge, reaffirm Lopez

- Reyes (yet again), and find that the District Court did not abuse its discretion by imposing the below

- Guidelines sentence in this case.
Appellee’s br. at 5 (emphasis in original)

.

It became evident from the government’s argument in its brief that in its view

Lopez

- Reyes

The District Court failed to respond to Mr. Louis’s argument that an amendment to the firearms guideline compounded the impact of his prior convictions and resulted in an exces sive sentencing range for him. The government does not claim otherwise. A straightforward application of the well

- established principle that district courts must respond to colorable arguments compels this Court to vacate the sentence. is a critical case to be considered on this appeal. It is thus not surprisin g
that in his summary of his argument in his reply brief Louis set forth that:5 Instead, the gov ernment argues that the Court should affirm the sentence, based on the statement in United States v. Lopez

- Reyes , 589 F.3d 667, 671 (3d Cir. 2009), cert. denied , 130 S.Ct. 2362 (2010), that sentencing courts need not engage in extensive analysis of the dev elopment of a guideline in order to satisfy the meaningful consideration and response requirement. That proposition is at odds with United States Supreme Court and Third Circuit precedent, does a disservice to the evolution of the guidelines and ability o f appellate courts to review a sentence, and is fundamentally unfair to a criminal defendant entitled to an individualized sentence.
The record below presents this Court with an opportunity to reiterate that the argument that a guideline does not produce a fair sentence in an individual case is (1) subject to the meaningful consideration and response requirement, (2) important in an advisory guidelines system, and (3) appropriately directed to district courts.
Appellant’s reply br. at 1

- 2.
Although the sentencing guidelines since United States v. Booker , 543 U.S. 220,

125 S.Ct. 738 (2005) have been advis ory only, the district courts nevertheless start the
sentencing calculations by calculating a defendant’s guideline range and ruling on any

motion for de partures. They then impose the sentence after taking into account the
statutory sentencing factors in 18 U.S.C. § 3553(a). See United States v. Me rced , 603
F.3d 203, 215 (3d Cir. 2010). Accordingly, there is no doubt that though only advis ory , the guide lines remain important after Booker

After considering the parties’ arguments
, we reject Louis’s appeal. Though Louis
concedes that sentencing courts need not independently a nalyze the history of a guideline
to ensure that it reflects the Sentencing Commission’s expertise, he correctly points out
that a court should consider all colorable challenges to a guidelines sentence. He then and establish a starting point for a court to
consider when imposing a sentence.6 goes on to contend that a court may enterta in challenges to the guidelines themselves and
that a court should respond when a defendant “challenges the applicability of the
Guidelines under the spec ific circumstances of his case.” Appellant’s br. at 1 5

. In point

of fact , however, though the Distri ct Court in this case did not characterize its sentencing

considerations as entertaining a challenge to the guidelines, by varying downwards from

the guidelines range and sentencing below its bottom level
, the Court did what Louis

wanted . It consider ed th e applicability of the guidelines to the spe cific circumstances of

his case and then impose d an individualized sentence. Indeed, it appears that Louis’s

argument , though carefully and fully presented
, is more about nomenclature than

substance
, a s there is no meaningful distinction between a court saying that it accepts a
challenge to a guideline and a court indicating, as the District Court did here, that in
sentencing it is varying from a guideline . Finally, we note that our examination of the

presentenc e report hardly suggests that the Court abused its discretion in imposing the

sentence , as the sentence seems to have been quite appropriate

. The judgment of conviction and sentence entered on October 7, 2011, will be

affirmed.