United States of America v. Darvell Kelly

Hon. Arthur L. Alarcón, Senior Judge, United States Court*
of Appeals for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-3727
_____________
UNITED STATES OF AMERICA
v.
DARVELL KELLY,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 04-cr-00345-1)
District Judge: Honorable William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
April 14, 2008
Before: SLOVITER, JORDAN, and ALARCÓN, Circuit Judges*
(Filed: April 15, 2008)
______
OPINION

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SLOVITER, Circuit Judge.
Darvell Kelly appeals his sentence imposed following his conviction by a jury on
drug distribution charges. Kelly argues that the District Court failed to discuss at
sentencing the factors under 18 U.S.C. § 3553(a). For the reasons set forth below, we
will vacate Kelly’s sentence and remand for resentencing.
I.
Following a trial on June 6 and 7, 2005, a jury found Appellant Darvell Kelly
guilty on three counts of drug distribution and two counts of use of a telephone/cell phone
in furtherance of committing a drug offense. The jury found Kelly not guilty on a
conspiracy count. The charges stemmed from two controlled drug purchases made from
Kelly by Christopher Keppel, a Pennsylvania state trooper acting undercover, and a
cooperating witness. On two separate occasions, the cooperating witness, with Trooper
Keppel’s assistance, called Kelly to arrange to purchase crack cocaine. Sometime in
April 2004, Kelly sold the cooperating witness one-half ounce (approximately eleven
grams) of crack cocaine near the parking lot of a Turkey Hill convenience store in York,
Pennsylvania. On May 13, 2004, Kelly sold the cooperating witness an additional ounce
(approximately twenty-eight grams) of crack cocaine at the same location. Trooper
Keppel was present for both purchases.
In convicting Kelly, the jury found that the total quantity of crack cocaine was fifty
grams or more, and that at least five but less than fifty grams of crack cocaine were

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18 U.S.C. § 3553(a) provides in pertinent part that the1
sentencing court “shall consider”:
(1) the nature and circumstances of the offense and the
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distributed on each of the two occasions at issue. The Probation Office prepared a Pre-
Sentence Investigation Report and calculated Kelly’s offense level as Level 34, based on
its statement that Kelly had been responsible for at least 150 but less than 500 grams of
crack cocaine. Kelly objected to the drug quantity finding, and the District Court reduced
the offense level to Level 32, using the jury’s drug quantity findings of 50 grams or more
rather than that in the PSR.
The United States Sentencing Guidelines range for a Level 32 offense with a
criminal history category of VI is 210-262 months. The District Court, after hearing
arguments from counsel and a statement from Kelly, sentenced Kelly to 222 months on
each of the three drug distribution counts and to 48 months on each of the telephone use
counts, to be served concurrently.
II.
We review a sentence imposed by the District Court for reasonableness. United
States v. Cooper, 437 F.3d 324, 326-27 (3d Cir. 2006) (citing United States v. Booker,
543 U.S. 220 (2005)). The appellant has the burden of proving unreasonableness. Id. at
332. In evaluating reasonableness, we consider (1) whether the District Court correctly
calculated the applicable Sentencing Guideline range; (2) whether the District Court gave
“meaningful consideration” to the sentencing factors set forth at 18 U.S.C. § 3553(a) and1

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history and characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for –
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines . . . issued by the Sentencing
Commission . . . ;
(5) any pertinent policy statement . . . issued by the
Sentencing Commission . . . ;
(6) the need to avoid unwarranted sentencing disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
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addressed any significant issues raised by the parties; and (3) whether the § 3553(a)
factors were reasonably applied. United States v. Hankerson, 496 F.3d 303, 308 (3d Cir.
2007) (citing Cooper, 437 F.3d at 329-32). Our review of the District Court’s application
of the § 3553(a) factors is necessarily deferential, as the District Court is best situated to
determine an appropriate sentence based on the circumstances of the case. Id.
Kelly does not contest that the District Court correctly calculated the sentencing

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range under the Sentencing Guidelines. Instead, Kelly contends that we cannot determine
whether the District Court properly exercised its discretion in sentencing him because the
Court did not fully discuss the sentencing factors set forth at 18 U.S.C. § 3553(a). In
support of its sentencing decision, the District Court stated:
I realize that the penalties in state court are less than they are in federal court, but
I’m concerned about disparity in the federal sentencing scheme. And while I think
these sentences are very, very heavy, nevertheless, I can tell you a lot of people
come in here facing these same ranges. . . . the evidence against [Kelly] was very,
very strong. . . . I don’t think [Kelly] testified truthfully at trial. And considering
all of the other factors that go into this and my concern about sentencing other
people to terms like this and avoiding disparity in sentencing, it is my judgment
that the guideline range here is presumptively valid, and I will sentence within that
range.
App. at 363, 365-66.
After the District Court’s sentencing decision, this court stated in Cooper, 437 F.3d
at 331-32, that although “[t]here are no magic words that a district judge must invoke
when sentencing,” id. at 332, the record must indicate not only consideration of the
advisory Sentencing Guidelines but of the other § 3553(a) factors as well. Id. at 331-32.
We held that in order to determine whether the court acted reasonably in imposing the
sentence, we must first be satisfied that the court exercised its discretion by considering
the relevant factors. Id. at 329. As we noted at the outset, Kelly argues that his sentence
should be vacated because the District Court failed to discuss the § 3553(a) factors on the
record. Kelly did not argue at the sentencing hearing, nor does he now on appeal, that the
Court should have more fully considered a specific § 3553(a) factor that weighed in his

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favor. Instead, Kelly argues essentially that the District Court’s sentence was
procedurally flawed. See United States v. Goff, 501 F.3d 250, 256 (3d Cir. 2007)
(concluding that district court’s failure adequately to discuss § 3553(a) factors was a
procedural flaw).
We recognize that the District Court could not have anticipated the decisions that
this court announced subsequent to its sentencing, but in light of those decisions we
conclude that the District Court’s explanation of the basis for its sentencing decision does
not adequately permit appellate review. See United States v. Charles, 467 F.3d 828, 831
(3d Cir. 2006) (requiring district courts to state adequate reasons for sentence on the
record to allow for “meaningful appellate review”) (internal quotation marks and citation
omitted). Although the District Court summarily asserted that its sentence “satisfies the
purposes set forth in [§] 3553(a) of 18 United States Code,” App. at 367, this explanation
does not permit meaningful appellate review in light of the fact that the District Court did
not adequately discuss the § 3553(a) factors as now required by Cooper. Therefore, we
will vacate Kelly’s sentence and remand.
Kelly also contends that his sentence should be vacated because the District Court
did not indicate whether it considered the different penalties assigned to crack versus
powder cocaine in the Sentencing Guidelines. In United States v. Gunter, we held that a
district court may take the crack/powder cocaine disparity into account in determining a
sentence. 462 F.3d 237, 249 (3d Cir. 2006). Thereafter, in Kimbrough v. United States,

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--- U.S. ----, 128 S. Ct. 558 (2007), the Supreme Court held that district courts may
consider the crack/powder cocaine disparity in making their sentencing decisions. See
United States v. Wise, 515 F.3d 207, 222-23 (3d Cir. 2008). Decisions rendered while a
case is on appeal, as here, are applicable precedent. Virgin Islands v. Civil, 591 F.2d 255,
258 (3d Cir. 1979). The record is unclear as to whether the District Court understood the
differential to be mandatory or discretionary, as it was not discussed on the record or
raised by Kelly at the sentencing hearing.
III.
For the reasons set forth, we will vacate Kelly’s sentence and remand for
resentencing.
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