United States of America v. ELY BELL also known as “HB” Ely Bell

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 09-1442
_____________
UNITED STATES OF AMERICA
v.
ELY BELL
also known as
“HB”
Ely Bell,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-07-cr-00170-002)
District Judge: Honorable Edwin M. Kosik
Submitted Under Third Circuit LAR 34.1(a)
September 14, 2009
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges.
(Filed September 17, 2009 )
____
OPINION
SLOVITER, Circuit Judge.

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Appellant Ely Bell pled guilty to conspiracy to distribute and possess with intent to
distribute cocaine base, in violation of 21 U.S.C. § 846, and the District Court sentenced
him to a below-Guidelines sentence of 100 months imprisonment. On appeal, Bell
challenges only the reasonableness of his sentence. We will affirm.
I.
In 2007, federal and Pennsylvania law enforcement personnel commenced an
investigation of a suspected drug trafficking ring in Bradford County, Pennsylvania.
During the course of that investigation, Bell directly participated in the sale of crack
cocaine to undercover officers. Following one such transaction, Bell and a co-conspirator
were arrested. Ultimately, a six-count Indictment was returned against Bell and two co-
conspirators alleging a drug conspiracy to distribute in excess of five grams of cocaine
base and related offenses.
In January 2008, pursuant to a written plea agreement, Bell pled guilty to one
count of conspiracy to distribute and possess with intent to distribute cocaine base in
violation of 21 U.S.C. § 846. The government agreed to drop the remaining charges in
the Indictment, to amend the conspiracy count to reflect a non-specific amount of cocaine
base, and to recommend a three-level downward departure for acceptance of
responsibility. The government also moved for a downward departure of two levels for
substantial assistance.
At Bell’s sentencing hearing, the District Court adopted, without objection from

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Bell was sentenced under the 2007 version of the U.S.1
Sentencing Guidelines Manual.
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either party, the findings of the Presentence Investigation Report (“PSR”) filed by the
Probation Office. In light of two prior felony drug convictions and a conviction for a1
crime of violence, Bell was categorized as a career offender under the Sentencing
Guidelines. Including a three-level departure for acceptance of responsibility, Bell
therefore faced an offense level of twenty-nine and a criminal history category of VI,
resulting in an advisory Guidelines sentencing range of 151 to 188 months imprisonment.
The District Court also granted the government’s motion for a two-level departure for
substantial assistance, which reduced Bell’s Guidelines range to 130 to 162 months
imprisonment.
The District Court then heard argument from both parties regarding an appropriate
sentence in light of the sentencing factors contained in 18 U.S.C. § 3553(a). Bell
emphasized his acceptance of responsibility, his very difficult upbringing–his parents
separated when he was twelve, and he lived with his mother and aunt, who were both
addicted to drugs, until he was moved to foster care–and his history of substance abuse
and psychiatric illness, including a diagnosis of schizophrenia before age sixteen. Bell
also noted that, as a consequence of his cooperation with the government in this case, he
was assaulted in prison. In light of these factors, Bell requested a sentence of no more
than eighty-four months imprisonment. The government conceded that Bell’s past was an
important mitigating factor and recommended a sentence at the bottom of the Guidelines

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The District Court had jurisdiction pursuant to 18 U.S.C.2
§ 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
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range in light of Bell’s extensive criminal history, the need for deterrence, and the need
for public safety.
As noted above, the District Court imposed a sentence of 100 months
imprisonment. The Court expressly found that Bell’s difficult past supported a reduced
sentence, but also concluded that it must balance that past against his extensive criminal
record and the need for deterrence. Accordingly, the Court imposed a substantially
below-Guidelines sentence that was between the sentences requested by Bell and the
government.2
II.
We review the reasonableness of a sentence under an abuse-of-discretion standard.
See United States v. Tomko, 562 F.3d 558, 564 (3d Cir. 2009) (en banc). We have
outlined a three-step process for district courts to follow in imposing a sentence. First,
the court must calculate the applicable Guidelines range. Second, it must rule on any
motions for departures pursuant to the Guidelines. Finally, it must consider the § 3553(a)
sentencing factors to determine the appropriate sentence. See id. at 567.
Here, Bell does not identify any procedural error by the District Court. Indeed, the
District Court adopted the correct calculation of the Guidelines range contained in the
PSR, granted the government’s motion for a downward departure for substantial

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assistance, and heard argument from the parties regarding the appropriate sentence. The
District Court explained on the record its reasons for the sentence imposed, including
specific reference to the most relevant § 3553(a) factors.
The crux of Bell’s argument on appeal is that the sentence imposed was
substantively unreasonable because the “District Court failed to give enough weight to
Bell’s mental condition, upbringing, battle with substance abuse, and the reality of his
criminal history.” Appellant’s Br. at 11. However, “if the district court’s sentence is
procedurally sound, we will affirm it unless no reasonable sentencing court would have
imposed the same sentence.” Tomko, 562 F.3d at 568. Here, the District Court acted well
within its discretion. Indeed, it imposed a substantially-below Guidelines sentence in
light of the mitigating factors identified by Bell. The District Court struck a balance
between those mitigating factors, Bell’s extensive criminal history, and the need for
deterrence. We cannot conclude that the Court’s weighing of these countervailing
considerations was an abuse of discretion.
III.
For the above-stated reasons, we will affirm the judgment of conviction and
sentence.

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