United States of America v. Gregory Vincent, a/k/a G-Money, a/k/a Vincent Gregory GREGORY VINCENT

The Honorable Paul S. Diamond, United States District Judge for the Eastern*
District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-4568
_____________
UNITED STATES OF AMERICA
v.
GREGORY VINCENT, a/k/a G-Money,
a/k/a Vincent Gregory
GREGORY VINCENT,
Appellant
On Appeal From the United States District Court
for the District of New Jersey
(No. 3-08-cr-00351-001)
District Judge: Honorable Joel A. Pisano
Submitted Under Third Circuit LAR 34.1(a)
June 1, 2009
BEFORE: FISHER and CHAGARES, Circuit Judges and DIAMOND , District Judge.*
(Filed: July 13, 2009)
_____________
OPINION OF THE COURT
_____________
CHAGARES, Circuit Judge.

-- 1 of 7 --

2
Appellant, Gregory Vincent (“Vincent”), pled guilty to knowingly possessing a
firearm while a convicted felon, and now appeals his sentence. We will affirm the
sentence imposed by the District Court.
I.
Because we solely write for the parties, we will only briefly summarize the essential
facts. On June 15, 2007, a Special Agent with the United States Department of Justice,
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) received information
from a confidential informant that Vincent was offering a AK-47-style rifle for sale for
$1800. The informant then purchased the firearm from Vincent on June 18, 2007. On
October 16, 2007, ATF agents arrived at Vincent’s home to execute the warrant arising out
of the June 18 transaction, and, while engaging in a protective sweep of his home, they
discovered a loaded revolver underneath Vincent’s mattress.
Vincent was charged with, and pled guilty to, knowingly possessing that firearm, a
Sturm, Ruger & Company, .357 Magnum caliber revolver, while a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was not charged with any offense
arising out of the June 18, 2007 transaction. After holding a sentencing hearing, the
District Court sentenced Vincent to 77 months imprisonment followed by three years of
supervised release. Vincent now appeals his sentence.
II.

-- 2 of 7 --

3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 18 U.S.C. §§ 1291 and 3742(a). In reviewing Vincent’s sentence,
first, we must determine that the District Court “committed no significant procedural
error,” such as “failing to consider the [18 U.S.C.] § 3553(a) factors . . . or failing to
adequately explain the chosen sentence.” Gall v. United States, 128 S. Ct. 586, 597
(2007); see United States v. Smalley, 517 F.3d 208, 214 (3d Cir. 2008). If the District
Court’s decision is procedurally sound, we then review the sentence for substantive
reasonableness under an abuse of discretion standard, “tak[ing] into account the totality of
the circumstances.” Gall, 128 S. Ct. at 597; see Smalley, 517 F.3d at 214.
In reviewing the sentence imposed by the District Court, while we “do not seek to
second guess,” we nevertheless must assure ourselves that it has given us an “explanation .
. . sufficient for us to see that the particular circumstances of the case have been given
meaningful consideration within the parameters of § 3553(a),” United States v. Levinson,
543 F.3d 190, 196 (3d Cir. 2008), and that the District Court made an “individualized
assessment based on the facts presented.” Gall, 128 S. Ct. at 597; Levinson, 543 F.3d at
196. In addition, “[t]he sentencing judge should set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Rita v. United States, 127 S. Ct. 2456, 2468
(2007).
III.

-- 3 of 7 --

4
Vincent makes three arguments on appeal. First, Vincent argues that the District
Court erred when it denied his downward departure motion based on the alleged
overstatement of his criminal history. He contends that his criminal history was overstated
because many of the criminal history points came from crimes that occurred when Vincent
was a young man, and that the crimes were mostly minor offenses. This Court does not
have jurisdiction to review a district court’s discretionary decision not to grant a
downward departure. United States v. Vargas, 477 F.3d 94, 103 (3d Cir. 2007). This
Court has jurisdiction to review such a denial, however, if the district court mistakenly
thought that it lacked the discretion to do so. Vargas, 477 F.3d at 103. As there is no
indication that the District Court believed it lacked the discretion to grant Vincent’s
motion here, this Court has no jurisdiction to review his claim.
Second, Vincent argues that the District Court erred when it did not grant to him a
downward departure or variance with regard to his physical limitations. Vincent is
paralyzed from the waist down and has certain accompanying medical issues, such as his
use of a catheter, which he argues will make prison difficult for him. This Court has no
jurisdiction to review the District Court’s denial of Vincent’s downward departure motion
on this ground, as there is no indication that the District Court believed it lacked the
discretion to grant Vincent’s motion. Vargas, 477 F.3d at 103. With regard to Vincent’s
argument that a variance was warranted, we find that the District Court did not abuse its
discretion in denying Vincent’s variance request, as the Court took into account Vincent’s

-- 4 of 7 --

5
physical limitations when crafting the sentence. See, e.g., Appendix (“App.”) 67 (“I think
that [Vincent’s physical condition] does come into play when I come down on where a
reasonable sentence ought to fall, taking into account the statutory factors.”); App. 70-71
(explaining that it will take into account Vincent’s physical limitations and medical issues
in sentencing him); App. 71-72 (explaining that his physical limitations are why the Court
gave a sentence at the bottom of the Guidelines).
Finally, Vincent contends that the District Court erred when it took into account the
uncharged conduct from June 2007 in sentencing him. In analyzing that conduct, and
deciding to take it into account in sentencing, the District Court noted that the allegations
against Vincent were very specific, and that there was a “substantial” investigation. App.
64-65. The Court noted that the prior conduct was relevant because that is why the ATF
agents were at Vincent’s home in October 2007. App. 65. Nevertheless, the Court stated,
“I think it effects [sic] more the argument that the criminal history is overstated than it
does where I come down on the actual sentence,” and explained that Vincent’s trafficking
in guns so soon after getting released from jail suggested that his criminal history was not
overstated. App. 65-66. However, at a later point in the sentencing, the District Court
stated that the prior conduct was “very significant, even more significant than the crime of
conviction.” App. 71-72.
We find that it was not an abuse of discretion for the District Court to take into
account Vincent’s prior conduct in imposing the sentence. See 18 U.S.C. § 3661 (“No

-- 5 of 7 --

6
limitation shall be placed on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the United States may receive
and consider for the purpose of imposing an appropriate sentence.”). Cf. United States v.
Berry, 553 F.3d 273, 284 (3d Cir. 2009) (“[A] bare arrest record - without more - does not
justify an assumption that the defendant committed other crimes and it therefore cannot
support increasing his/her sentence in the absence of adequate proof of criminal
activity.”); United States v. Rudolph, 137 F.3d 173, 177 (3d Cir. 1998) (uncharged
conduct may form the basis for upward or downward sentencing adjustments). Here, there
was much more than a bare arrest record - there was a specific recounting of the
investigation - and taking this conduct into account in sentencing Vincent was not an
abuse of discretion.
Furthermore, while the District Court’s statement that the prior conduct was “very
significant, even more significant than the crime of conviction,” App. 71-72, was
unfortunate, we nevertheless find that this comment does not rise to the level of an abuse
of discretion, as the overall context of the sentencing shows that the District Court
sentenced Vincent based on a myriad of factors, not predominantly the uncharged conduct.
See United States v. Fisher, 502 F.3d 293, 312 (3d Cir. 2007) (Rendell, J., concurring)
(“[T]he defendant’s right to due process is implicated when it appears that a defendant is
being sentenced primarily for a crime other than the crime of conviction, such as when the

-- 6 of 7 --

7
defendant’s sentence is based predominantly on criminal conduct collateral to the crime of
conviction.”).
IV.
For the foregoing reasons, we will affirm the judgment of sentence.

-- 7 of 7 --