NOT PRECEDENTIAL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 Court

for the District of New Jersey

(D.C. Crim. No. 3-10-00470-001)

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 offense 

level and his criminal history category and taking into account the applicable statutory 

maximum sentence allowable, the 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). Louis 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 government agrees that he correctly sets forth the standard 

of review.

So, at any rate, the concern that I have is Mr. Louis’ background. It 

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 guidelines 
3

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 characteristics of the 

defendant; and the sentence must and in this case definitely needs to be 

serious, 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 be 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 Sentencing 

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 particular case. The District Court listened to the 

argument, but failed to acknowledge it, much less express any meaningful 

consideration of it.

This Court [of Appeals] has repeatedly stated that sentencing courts 

need not independently analyze the history of 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’s 
4

precedent, 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 circumstances 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 by 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, United 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 nonprecedential opinions. Despite the central importance of Lopez-Reyes to 

this appeal, Louis discusses 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 excessive 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 surprising 

that in his summary of his argument in his reply brief Louis set forth that:
5

Instead, the government 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 development 

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 of 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 advisory only, the district courts nevertheless start the 

sentencing calculations by calculating a defendant’s guideline range and ruling on any 

motion for departures. They then impose the sentence after taking into account the 

statutory sentencing factors in 18 U.S.C. § 3553(a). See United States v. Merced, 603 

F.3d 203, 215 (3d Cir. 2010). Accordingly, there is no doubt that though only advisory,

the guidelines remain important after Booker

After considering the parties’ arguments, we reject Louis’s appeal. Though Louis 

concedes that sentencing courts need not independently analyze 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 entertain challenges to the guidelines themselves and 

that a court should respond when a defendant “challenges the applicability of the 

Guidelines under the specific circumstances of his case.” Appellant’s br. at 15. In point 

of fact, however, though the District 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 considered the applicability of the guidelines to the specific circumstances of 

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

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

substance, as 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 

presentence 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.