2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-9-2013

USA v. Clifford Fleming

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4019

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Recommended Citation

"USA v. Clifford Fleming" (2013). 2013 Decisions. Paper 571.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-4019

_____________

UNITED STATES OF AMERICA

v.

CLIFFORD FLEMING, 

 Appellant 

_____________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 3-10-cr-00064-001)

District Judge: Honorable Edwin M. Kosik

_______________

Submitted Under Third Circuit LAR 34.1(a)

May 16, 2013

Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

(Filed: July 9, 2013 )

_______________

OPINION

_______________

CHAGARES, Circuit Judge.

Clifford Fleming was sentenced to 87 months of imprisonment for possession and 

distribution of methamphetamine and use of a firearm during a drug trafficking crime. 

That sentence reflected the District Court’s decision to grant the Government’s motion 
2

for a downward departure based on cooperation. Fleming appeals his sentence, arguing 

that the District Court should have granted him a further downward departure. For the 

reasons explained below, we will affirm the District Court’s judgment of sentence.

I.

Because we write solely for the benefit of the parties, we will recount only those 

facts necessary to our disposition.

Fleming pled guilty to two counts of the indictment: Count 1, which charged him 

with distributing and possessing with intent to distribute a mixture containing 

methamphetamine in violation of 21 U.S.C. § 841(A)(1) and Count 2, which charged him 

with using a firearm during and in relation to a drug trafficking crime in violation of 18 

U.S.C. § 924(c)(1). The District Court determined that Fleming had a total offense level

of 25 with a criminal history category of I on Count 1, which translated to an advisory 

guidelines range of 57 to 71 months. On Count 2, the District Court determined that 

Fleming was subject to a five-year mandatory minimum sentence, which he was required 

to serve consecutively to his sentence on Count 1. 

Due to Fleming’s cooperation with law enforcement, the Government moved for a 

seven-level reduction on Count 1 pursuant to section 5K1.1 of the United States 

Sentencing Guidelines. Appendix (“App.”) 51. The Government explicitly declined to 

move for a sentence below the mandatory minimum applicable to Count 2. Supplemental 

App. 5-6. The District Court granted the Government’s motion, making Fleming’s new 

range on Count 127 to 33 months. Following the Government’s recommendation that 

Fleming be sentenced at the bottom of this range, the District Court imposed a sentence
3

of 27 months on Count 1 and 60 months, the statutory minimum, on Count 2. Fleming 

now argues that the District Court erred in imposing the mandatory minimum sentence on 

Count 2, suggesting that he should have received an even greater downward departure.

II.

1

It is not entirely clear whether Fleming argues that the District Court committed 

error by not departing downward further than it did or by failing to recognize that it had 

the ability to depart below the five-year mandatory minimum sentence applicable to 

Count 2. In either case, his challenge is meritless. To the extent that his appeal is based 

on a belief that he should have been granted a greater downward departure, this Court 

lacks jurisdiction to consider it. United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 

2006) (reaffirming our earlier holding that appellate courts lack jurisdiction to entertain 

appeals challenging the extent of downward departures), abrogated on other grounds by

Kimbrough v. United States, 552 U.S. 85 (2007). If, on the other hand, Fleming suggests 

that the District Court was incorrect in treating the mandatory minimum as mandatory, 

his suggestion is simply incorrect. The Government’s section 5K1.1 motion was a 

limited motion that only sought a downward departure on Count 1; the motion

specifically stated that the Government did not move for a sentence below the mandatory 

minimum and consecutive nature of Count 2 and the Government never filed a separate 

motion under 18 U.S.C. § 3553(e) asking the District Court to depart below the statutory 

minimum. Under such circumstances, the District Court did not have the authority to 

 

1

The District Court had jurisdiction over this case under 18 U.S.C. § 3231. This Court 

has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
4

depart below the mandatory minimum. Melendez v. United States, 518 U.S. 120, 123

(1996).

III.

For the foregoing reasons, we will affirm the District Court’s sentence.