NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2503

___________

UNITED STATES OF AMERICA

v.

MICHAEL LOWRY,

 Appellant

_______________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. Criminal No. 10-cr-00238-001

(Honorable Alan N. Bloch)

______________

Argued April 17, 2012

Before: SCIRICA, AMBRO and NYGAARD, Circuit Judges.

(Filed: May 10, 2012)

RENEE PIETROPAOLO, ESQUIRE (ARGUED)

Office of Federal Public Defender

1500 Liberty Center

1001 Liberty Avenue

Pittsburgh, Pennsylvania 15222

Attorney for Appellant

LAURA S. IRWIN, ESQUIRE (ARGUED)

REBECCA R. HAYWOOD, ESQUIRE

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, Pennsylvania 15219

Attorneys for Appellee
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OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

Michael Lowry pleaded guilty to possession with intent to distribute heroin, 21 

U.S.C. § 841(a)(1), (b)(1)(C). He was sentenced to 120 months’ imprisonment, which he 

appeals. We will vacate and remand for resentencing.

I.

After an attempted drug sale to a police informant, Lowry was indicted for 

possession with intent to distribute less than 100 grams of heroin in violation of 21 

U.S.C. § 841(a)(1), (b)(1)(C). He pleaded guilty to the offense.

The Presentence Investigation Report determined that, based on an offense level of 

15 with six criminal history points, the range of imprisonment under the sentencing 

guidelines was 24 to 30 months. Absent any objections, the District Court adopted the 

report as accurate. The government filed a sentencing memorandum requesting an 

upward variance to 72 months because Lowry’s criminal history category did not include 

three convictions for juvenile drug trafficking or adequately consider Lowry’s continued 

recidivism. The memorandum also alleged that Lowry had committed an uncharged 

murder. Lowry responded by noting that the previous convictions were for small-time 

dealing and possession, and submitted that, if the court wished to consider these 

convictions, it could raise Lowry’s criminal history category to the next category rather 

than doubling the recommended maximum sentence. Lowry also disputed the 
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government’s assertion that he had committed a murder and argued any consideration of 

this factor in sentencing would violate his constitutional rights.

At the sentencing hearing, the District Court stated that it would not consider the 

allegations of Lowry’s involvement in a murder in sentencing. It then sentenced Lowry 

to 120 months’ imprisonment. In making this determination, the Court reasoned that the 

Guidelines’ recommended range was insufficient because it failed to account for Lowry’s 

three juvenile adjudications. It also noted that Lowry had served most of a three- to sixyear state sentence for a similar crime, and concluded that, “[i]f a six-year sentence did so 

little to deter the Defendant’s criminal activities, a guidelines sentence in the range of 24

to 30 months would have little or no impact.” The Court determined that “a guideline 

sentence would not adequately protect the public from the Defendant, provide any hope 

for rehabilitation, or provide adequate deterrence,” and that a “a sentence substantially 

higher is needed in this case.”

Lowry timely appealed.1

II.

We review sentencing decisions in two stages. First, we determine whether the 

sentencing court committed “significant procedural error, such as failing to calculate (or 

improperly calculating) the Guidelines range, treating the Guidelines as mandatory, 

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen sentence—including an 

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

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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explanation for any deviation from the Guidelines range.” United States v. Gall, 552 

U.S. 38, 51 (2007). If we determine the district court committed procedural error, we 

remand for re-sentencing. United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010). 

But if the decision is procedurally reasonable, we proceed to review for substantive 

reasonableness, affirming “unless no reasonable sentencing court would have imposed 

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

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).

The Supreme Court has made it “pellucidly clear that the familiar abuse-ofdiscretion standard of review . . . applies to appellate review of sentencing decisions.”

Gall, 552 U.S. at 46. We do not presume a sentence outside the Guidelines range 

unreasonable, although a “major departure should be supported by a more significant 

justification than a minor one.” Id. at 50. The ultimate “[t]ouchstone of ‘reasonableness’

is whether the record as a whole reflects rational and meaningful consideration of the 

factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 

(3d Cir. 2007) (en banc). In making this determination, we give “due deference” to the 

district court’s determination that “the § 3553(a) factors, on a whole, justify the extent of 

the variance.” Gall, 552 U.S. at 51. The mere “fact that the appellate court might 

reasonably have concluded that a different sentence was appropriate is insufficient to 

justify reversal of the district court.” Id.

Here, the sentence imposed by the District Court constituted a substantial upward 

variance: it was 400% greater than the maximum that the District Court properly 

calculated under the Guidelines and nearly double the sentence sought by the 
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government. Nonetheless, a substantial variance may be procedurally reasonable as long 

as it is “accompanied by a thorough justification of the sentence, ‘including an 

explanation for any deviation from the Guidelines.’” United States v. Negroni, 638 F.3d 

434, 446 (3d Cir. 2011) (quoting Gall, 552 U.S. at 51).

The District Court recognized that it was imposing a sentence “substantially 

higher” than that recommended under the Guidelines, and justified its decision by 

reference to several of the § 3553(a) factors. Nevertheless, despite this thoughtful 

analysis, the proffered explanation is insufficient to support the sentence, which we 

conclude was procedurally unreasonable.

Most significantly, the District Court did not consider 18 U.S.C. § 3553(a)(6), 

which requires courts to consider “the need to avoid unwarranted sentence disparities 

among defendants with similar records who have been found guilty of similar conduct.” 

Although we fault defendant’s counsel for not raising the issue of disparity more clearly

(particularly in response to the government’s request for a sentence more than twice the 

Guidelines’ recommended maximum), we believe that, under the totality of the 

circumstances and in view of the advisability to provide a substantial explanation for a 

substantial variance,

2

 2 The issue of disparity was implicated by the defendant’s urging that he receive a 

sentence within the guidelines, as well as his proposal to revise his criminal history 

category to the next category, Category IV, rather than the substantial increase the

government sought.

the issue was adequately raised to warrant consideration. The 

District Court was not obligated to explicitly discuss this question as long as “the record 

makes clear the court took the factors into account in sentencing.” United States v. 
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Cooper, 437 F.3d 324, 329 (3d Cir. 2006). But here, where there is no suggestion in the 

record that the District Court considered sentencing disparities, we cannot determine that

this standard was satisfied. See Merced, 603 F.3d at 224. We accordingly conclude that 

the sentence was procedurally unreasonable and will remand for resentencing. 

III.

For the foregoing reasons, we will vacate Lowry’s sentence and remand for 

resentencing.
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USA v. Michael Lowry, No. 11-2503

NYGAARD, Circuit Judge, concurring.

I agree with the majority that Michael Lowry’s sentence should be vacated and 

remanded to the District Court for resentencing. I, however, would do so for a different 

reason because in my view, counsel at sentencing rendered Lowry ineffective assistance 

by failing to properly object to the severity of his sentence.

The majority believes that counsel adequately raised the sentencing disparity, 

obligating the District Court to address it. I do not. I agree that, where the district court 

substantially varies from the Guidelines, it must provide a substantial explanation for 

doing so. Nonetheless, it is counsel’s responsibility to identify deficiencies in the district 

court’s reasoning so that—in addition to preserving the issue for appeal—the court has an 

opportunity to augment its explanation or, perhaps, alter its decision. It is asking too 

much of the District Court that it divine from vague references to the Guidelines that 

counsel believes that the sentence is unreasonably disparate from others similarly 

situated. 

In my view, the glaring deficiency was with counsel’s failure to raise the 

sentencing disparity at the sentencing hearing. Ineffective assistance of counsel claims 

are generally not reached on direct appeal except, in those rare circumstances, where “the 

record sufficiently establishes a basis for our review.” United States v. Theodoreopoulos,

866 F. 2d 587, 598 (3rd Cir. 1989) overruled on other grounds by United States v. Price, 

76 F.3d 526, 528 (3d Cir. 1996); see also Government of Virgin Islands v. Zepp, 748 F.2d 

125, 133 (3d Cir. 1984). This case fits within that narrow exception because there is no 

need for further factual development here. It was incumbent upon counsel, knowing that 

the Government was going to ask for a sentence in excess of 72 months, to come armed, 

not only with an objection to the disparity of the sentence, but with exemplar evidence 

sufficient to convince the District Court that the sentence is unreasonably disparate from 

others similarly situated. I would remand on this basis.