United States of America v. Yusuf Howard

Honorable Christopher C. Conner, United States District Judge for the Middle*
District of Pennsylvania, sitting by designation.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4233
UNITED STATES OF AMERICA
v.
YUSUF HOWARD,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cr-00047)
District Judge: Honorable John R. Padova
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 25, 2010
Before: FUENTES and FISHER, Circuit Judges,
and CONNER, District Judge.*
(Filed: March 11, 2010 )
OPINION OF THE COURT

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See United States v. Booker, 543 U.S. 220 (2005) (holding that the U.S. Sentencing1
Guidelines Manual should be applied as advisory, not mandatory, guidance).
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CONNER, District Judge.
Yusuf Howard was convicted of one count of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), one count of carrying a firearm
during or in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c), and one
count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1),
924(e)(1). After this Court vacated the sentence imposed by the District Court and remanded
for Booker re-sentencing, he was re-sentenced to 240 months. Howard now challenges that1
sentence. We will affirm.
I.
Because we write primarily for the benefit of the parties, we recount the facts and
procedural history only as they are relevant to the disposition of the case. After a traffic
stop on April 26, 2003, police found in Howard’s pants a .38 caliber revolver and a pill
bottle containing multiple packets of cocaine base with an aggregate weight of 3.618
grams. He was indicted and was subsequently tried and convicted for the above-
described offenses. On September 9, 2004, Howard was sentenced to terms of 240
months imprisonment on the drug offense (Count I) and 262 months imprisonment for the
felon-in-possession offense (Count III), which terms were to run concurrently. The
District Court also imposed a consecutive sentence of 60 months on Count II, the offense

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The District Court sentenced Howard to 70 months imprisonment for Count I,2
and 180 months for Count III, to run concurrently, followed by a consecutive term of 60
months for Count II. The term of 180 months on Count III is the statutory minimum,
because Howard’s previous convictions triggered the 15-year minimum term under the
Armed Career Criminal Act. See 18 U.S.C. § 924(e). The Act also mandates a five-year
minimum term of imprisonment for Count II, which must run consecutive to any other
term of imprisonment. See 18 U.S.C. § 924(c).
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of carrying a firearm in connection with a drug trafficking offense. Thus, the District
Court imposed a total term of imprisonment of 322 months. We subsequently vacated
his sentence and remanded the case. See United States v. Howard 248 F. App’x 437 (3d
Cir. 2007). At the resentencing hearing, the District Court granted a downward variance
based upon: (1) the less egregious circumstances of past convictions which qualified
Howard as an armed career criminal, and (2) its finding that a sentence within the
guidelines range—which called for 262 to 327 months’ imprisonment—would be greater
than necessary. The District Court sentenced Howard to a total term of imprisonment of
240 months, a six-year term of supervised release, a fine of $500, and a special2
assessment of $300. Howard now appeals.
We have jurisdiction over Howard’s appeal pursuant to 18 U.S.C. § 3742(a)(1) and
28 U.S.C. § 1291. We review the reasonableness of the District Court’s sentence for
abuse of discretion. Gall v. United States, 552 U.S. 38, 46 (2007). We review the
District Court’s findings of fact for clear error, and we exercise plenary review over its
interpretations of law. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007).

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The Court notes that the application of the Sentencing Guidelines remains mandatory3
in certain contexts not relevant to the instant case. See United States v. Doe, 564 F.3d 305
(3d Cir. 2009) (holding that the Sentencing Guidelines are binding in sentence modification
proceedings under 18 U.S.C. § 3582(c)(2)).
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II.
Howard argues that the District Court erred insofar as it failed to take into
consideration further downward departures which were available and applied the
sentencing guidelines too rigidly. He also contends that the District Court failed to justify
its sentence in light of the factors provided in 18 U.S.C. § 3553, and the mandate to
“impose a sentence sufficient, but not greater than necessary, to comply with” sentencing
purposes.
Howard’s contentions are wholly without merit in that the District Court imposed
the minimum sentence permitted under the applicable federal statutes. His suggestion
that the District Court had the authority to impose a lesser sentence is incorrect. To the
contrary, federal law mandated that the District Court impose, at an absolute minimum, a
sentence of 240 months. See 18 U.S.C. § 924(c), (e). The District Court was
unquestionably required to follow that mandate. Although Booker abolished the
mandatory nature of the Sentencing Guidelines, it had no effect on the mandatory3
application of statutory minimum sentences. See, e.g., United States v. Doe, 564 F.3d
305, 314 (3d Cir. 2009) (“The Guidelines are no longer mandatory, but that does not
render optional statutory directives.” (quoting United States v. Wise, 515 F.3d 207, 220

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(3d Cir. 2008)) (internal quotation marks omitted)), United States v. Williams, 464 F.3d
443, 449 (3d Cir. 2006) (upholding the application of a statutory mandatory minimum
sentence for a conviction of possession of a firearm, and declining to remand that
conviction for Booker re-sentencing). Our enforcement of statutory minimum sentences
as mandatory directives is entirely consistent with the decision of the Supreme Court in
Kimbrough v. United States, 552 U.S. 85, 104-05 (2007) (holding that, although
sentencing courts are not required “to adhere to the 100-to-1 ratio” for quantities of
cocaine base as a general rule, they must do so in cases that implicate “the statutory
mandatory minimum sentences”). Our decision is also supported by other circuits that
have addressed this issue. See United States v. Bermudez, 407 F.3d 536, 545 (1st Cir.
2005); United States v. Sharpley, 399 F.3d 123, 127 (2d Cir. 2005); United States v.
Groce, 398 F.3d 679, 682 n.2 (4th Cir. 2005); United States v. Farias, 481 F.3d 289, 291-
92 (5th Cir. 2007); United States v. Franklin, 499 F.3d 578, 584 (6th Cir. 2007); United
States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); United States v. Freemont, 513 F.3d
884, 890 (8th Cir. 2008); United States v. Hernandez-Castro, 473 F.3d 1004, 1007 (9th
Cir. 2007); United States v. Harris, 447 F.3d 1300, 1307 (10th Cir. 2006); United States
v. Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005). In sum, the District Court’s
application of the statutory minimum sentence was entirely proper.
III.
For the reasons stated above, we will affirm the sentence imposed by the District Court.

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