United States of America v. Glenn Theron Ross, Jr

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4604
UNITED STATES OF AMERICA,
Appellant
v.
GLENN THERON ROSS, JR.,
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 1-07-cr-00014-001
District Judge: The Honorable Maurice B. Cohill, Jr.
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 27, 2009
Before: SMITH, FISHER, and STAPLETON, Circuit Judges
(Filed: November 6, 2009)
OPINION
SMITH, Circuit Judge.
Glenn Theron Ross, Jr., pleaded guilty in the United States District Court
for the Western District of Pennsylvania to being a convicted felon in possession

-- 1 of 4 --

2
of three firearms in violation of 18 U.S.C. § 922(g)(1), and to possession with the
intent to distribute and distribution of less than fifty (50) kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). The probation officer who
prepared the pre-sentence report (PSR) calculated an offense level of 23 and a
criminal history category of II, yielding an advisory guideline range of
imprisonment of 51 to 63 months. Prior to sentencing, Ross urged the District
Court to grant a downward departure or a variance from the advisory guideline
range because his offenses were “not serious.” He asserted that the shotgun found
in his living room belonged to his son and that the two handguns found in his
closet belonged to a friend who had left them at Ross’s house after target shooting
on Ross’s property. He also submitted that the quantity of marijuana was
minimal, weighing 312.4 grams, and that a portion of this could not be distributed
as it was “smoked roaches, seeds and stems.” In addition, he cited his continuing
medical treatment for a crushing injury to his right foot as a basis for a below
guidelines sentence.
At sentencing, the District Court adopted the guideline range of 53 to 61
months. In response, Ross urged the District Court to grant a variance below the
advisory guideline range. Ross and his son testified about the ownership of the
firearms. Ross also described the medical status of his crushed foot. The District
Court found Ross’s argument persuasive. It determined that the shotgun belonged

-- 2 of 4 --

The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise1
appellate jurisdiction pursuant to 18 U.S.C. § 3742(b).
3
to Ross’s son, and found Ross’s testimony about the handguns having been left
behind by another individual to be credible. In addition, the Court specifically
noted the serious condition of Ross’s injured foot. It granted a variance from the
advisory guideline range of 51 to 63 months, imposing a sentence on each count of
five years probation, with twelve months of home detention, to be served
concurrently. The Government filed this timely appeal.1
The Government contends that the District Court committed procedural
error in sentencing Ross. According to the Government, the District Court erred
because it did not address the arguments the Government made in support of a
sentence of imprisonment, and because it made only a rote reference to the factors
set forth in 18 U.S.C. § 3553(a).
We review a claim that a district court committed procedural error in
sentencing under an abuse of discretion standard. United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009) (en banc). After careful review of the record before
us, we find no abuse of discretion.
The Government offered arguments in support of a sentence of
imprisonment in response to Ross’s arguments in favor of a substantial variance.
After listening to the presentations by both parties, the District Court made

-- 3 of 4 --

4
findings regarding the nature and circumstances of both the firearms and the drug
offenses, as well as Ross’s history and characteristics, including his medical
status. The Court acknowledged the advisory guideline range, but determined that
a sentence of incarceration was not warranted. This, in our view, demonstrates
that the District Court considered the Government’s arguments, but ultimately was
not swayed by them.
We also reject the Government’s contention that the District Court made
only a rote reference to the § 3553(a) factors. It is true that the District Court did
not specifically cite or articulate findings for each factor. Nonetheless, the record
demonstrates that the District Court sufficiently considered the pertinent § 3553(a)
factors by weighing the particular facts of the case before it. United States v.
Cooper, 437 F.3d 324, 329 (3d Cir. 2006).
Accordingly, we will affirm the judgment of the District Court.

-- 4 of 4 --