United States of America v. Donte T. Brooks

*Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4777
UNITED STATES OF AMERICA
v.
DONTE T. BROOKS,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 05-cr-00209-2)
District Judge: Honorable Malcolm Muir
Argued February 4, 2008
Before: MCKEE and AMBRO, Circuit Judges,
and IRENAS,* District Judge
Opinion filed: April 2, 2008
James V. Wade,
Federal Public Defender
Ronald A. Krauss (Argued)
Assistant Federal Public Defender–Appeals
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant

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1 In his opening brief, Brooks also argued that the District Court should have
varied from the Guidelines’ sentencing range in light of the difference in punishment for
distributing crack as opposed to powder cocaine. But he withdrew this claim at oral
argument, choosing instead to file a motion under 18 U.S.C. § 3852(c)(2) to take
advantage of the U.S. Sentencing Commission’s recent decision under 28 U.S.C. § 994(o)
to make a two-level reduction in the penalties for crack cocaine retroactive. As of March
3, 2008, Brooks may pursue a reduction in his sentence in the District Court on that
ground. See U.S. Sentencing Guidelines Manual app. C at 55–56 (Supp. March 3, 2008
to Supp. 2007), available at http://www.ussc.gov/2007guid/20080303_Supplement_
2
Thomas A. Marino
United States Attorney
Theodore B. Smith, III (Argued)
Assistant United States Attorney
Chief, Criminal Appeals
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
Harrisburg, PA 17108
Counsel for Appellee
OPINION
AMBRO, Circuit Judge
Donte Brooks pled guilty to one charge of conspiracy to distribute cocaine base
(known colloquially as crack) under 21 U.S.C. § 846. He received a sentence of 51
months, the bottom of the federal Sentencing Guidelines range. Brooks appeals to our
Court, arguing that the District Court erred in calculating his sentence.1 We affirm the

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to_2007_Guidelines.pdf (last visited Mar. 17, 2008).
2This part of the Guidelines’ calculation corresponds to step one of United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
3
District Court’s decision.
I. Background
Brooks became involved in an illegal drug operation run by his cousin and uncle.
As part of this, he accompanied his cousin on four trips to transport crack cocaine from
Philadelphia to Williamsport, Pennsylvania. On the fourth trip, after two confidential
informants separately purchased crack cocaine from his cousin, police obtained a search
warrant for the residence at which the sales took place. There they discovered several
packages of both crack and marijuana. In the bedroom, for instance, a pair of jeans
contained 12.7 grams of crack in the pocket. Police found Brooks in a bathroom, where
$704 in cash and 5.6 grams of crack (packaged in small plastic bags) had been stashed in
the ceiling. Police also found a loaded .38 special revolver, registered in Brooks’s name,
in a bedroom dresser drawer.
The Government charged Brooks with conspiracy to distribute crack cocaine under
21 U.S.C. § 846 (the conspiracy provision), with reference to the underlying crime
defined in 21 U.S.C. § 841(a)(1) (prohibiting distribution of controlled substances). The
conspiracy charge is a felony with a maximum sentence of 20 years in prison and with no
mandatory minimum. Although he pled guilty, Brooks challenges his sentence on appeal.
Four factors shaped Brooks’s sentencing range under the Guidelines.2 First, the

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3 Granting a departure under specific Guidelines’ provisions after a formal motion
corresponds to step two of Gunter. 462 F.3d at 247.
4
Government supported a stipulation that the amount of crack involved was at least 5
grams but less than 20 grams—despite the greater quantity of drugs that was present in
the residence at which Brooks was arrested. This set the base offense level at 26. See
U.S.S.G. § 2D1.1(c)(7). Second, his possession of a firearm in connection with the crime
resulted in a two-level enhancement under U.S.S.G. § 2D1.1(b)(1). Third, Brooks played
something between a “minimal” and a “minor” role in the offense, resulting in a three-
level reduction under U.S.S.G. § 3B1.2. (These facts resulted in an initial total offense
level of 25.) Fourth, prior to the arrest, Brooks had a “relatively minor” criminal history
and had not served time in prison. This qualified him for a criminal history category of I,
yielding a Guidelines’ range of 57 to 71 months, before consideration of departures and
variances.
Brooks then received a one-level departure under U.S.S.G. § 5K1.1 for providing
substantial assistance to the Government in the prosecution of others.3 This reduced his
total offense level to 24 and yielded a Guidelines’ range of 51 to 63 months. The District
Court sentenced Brooks to 51 months, the bottom of the range.
Brooks challenges the two-level enhancement he received for possession of a
firearm in connection with the drug crime. He further argues that, absent the finding of a
nexus between his crime and his possession of the firearm, the District Court should have
found him eligible for the “safety valve provision” of U.S.S.G. § 2D1.1(b)(11). That

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provision calls for a two-level reduction if an offense satisfies the factors listed at
U.S.S.G. § 5C1.2(a): (1) having less than one criminal history point, (2) not using
violence or threats and not possessing a dangerous weapon such as a firearm, (3) not
causing death or serious bodily injury, (4) not acting as an organizer or leader, and (5)
providing truthful information to the Government when there was such information to
provide.
II. Challenges to the Calculated Guidelines Sentencing Range
Brooks contends, in effect, that the District Court made two related errors in the
calculation of his sentence under the Guidelines. We review sentences for abuse of
discretion. Gall v. U.S., 552 U.S. ___, ___, 128 S. Ct. 586, 597 (2007) (“[T]he appellate
court must review the sentence under an abuse-of-discretion standard. It must first ensure
that the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range . . . [or] selecting a sentence
based on clearly erroneous facts . . . .”).
A. Enhancement for Possession of a Firearm
Brooks purchased and registered the gun legally. He had owned it for four years
for protection in his “dangerous” Philadelphia neighborhood. He claims he took the gun
with him to Williamsport to avoid leaving it in his mother’s home. Importantly,
according to Brooks, the firearm was put away out of sight in a dresser drawer and had no
connection to the offense. All these considerations, he argues, suggest that the firearm
did not play a role in the drug-selling conspiracy.

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Whenever “a dangerous weapon (including a firearm) was possessed” in
connection with a crime, U.S.S.G. § 2D1.1(b)(1) requires a two-level enhancement to the
offense level. “The adjustment should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense. For example, the
enhancement would not be applied if the defendant, arrested at his residence, had an
unloaded hunting rifle in the closet.” U.S.S.G. § 2D1.1(b)(1), app. n.3. Brooks makes an
analogy between his loaded .38 special in a drawer and the hypothetical unloaded hunting
rifle in the closet.
The District Court rejected this analogy, and so do we. Leaving aside the
difference between loaded and unloaded weapons, it was not an abuse of discretion for
the District Court to find that Brooks’s gun was “easily accessible” from the drawer.
Thus, we uphold the two-level enhancement in the calculation of the Guidelines’ range
for Brooks’s sentence. See United States v. Sparrow, 371 F.3d 851, 853 (3d Cir.2004)
(stating, in the related context of 18 U.S.C. § 924(c), that “immediate accessibility at the
time of search or arrest is not a legal requirement” for possession of a firearm in
furtherance of drug trafficking).
B. “Safety Valve” Provision
To qualify for a “safety valve” reduction, a defendant must meet, as noted, all five
criteria of U.S.S.G. § 5C1.2(a). Possession of a firearm in connection with an offense
violates the second of these five criteria. U.S.S.G. § 5C1.2(a)(2). Because the District
Court did not abuse its discretion by finding that Brooks possessed a firearm in

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connection with the drug-distribution conspiracy, his offense cannot meet the safety valve
criteria.
* * * * *
For the reasons stated above, we affirm the District Court’s decision.

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