United States of America v. Sonny Surine, a/k/a Sonny Albert Surine Sonny Surine

The Honorable John R. Padova, Senior District Judge for the United States District*
Court for the Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3095
UNITED STATES OF AMERICA
v.
SONNY SURINE, a/k/a Sonny Albert Surine
Sonny Surine,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Case No. 07-cr-00317-1)
District Judge: Honorable James F. McClure, Jr.
Submitted Under Third Circuit LAR 34.1(a)
January 26, 2010
Before: RENDELL and JORDAN, Circuit Judges,
and PADOVA, Senior District Judge.*
(Filed: February 22, 2010)
OPINION OF THE COURT
PADOVA, Senior District Judge

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Sonny Surine appeals his sentence to a term of 60 months of imprisonment, three
years of supervised release, and a $100 special assessment for conspiring to possess with
intent to distribute 50 grams or more of cocaine base, or crack, in violation of 21 U.S.C.
§ 846. Surine argues that the District Court erred in (1) applying the firearm
enhancement pursuant to U.S.S.G. § 2D1.1(b)(1), (2) denying his request for a minor role
adjustment pursuant to U.S.S.G. § 3B1.2(b), (3) failing to apply the enumerated factors
under U.S.S.G. § 5K1.1, (4) failing to follow the three-step sentencing process outlined in
United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), and (5) imposing an unreasonable
sentence. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
For the following reasons, we will affirm.
I.
Because we write for the benefit of the parties, we confine our discussion to the
facts salient to this appeal. The charge against Surine arose out of Surine’s involvement
in a conspiracy over the course of approximately one and a half years to purchase and
resell both powder and crack cocaine. For the duration of the conspiracy, Surine lived
with his father, Paul Surine, in a trailer complex in Tioga County, Pennsylvania. In the
summer of 2005, Paul Surine and his girlfriend, Lisa Lehman, began buying cocaine from
individuals in the Elmira, New York area. They would then, along with Surine and
others, weigh out the cocaine, package it for resale, and eventually resell it. Lehman and
Paul Surine would also cook the powder cocaine into crack. For the duration of the

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conspiracy, cocaine deliveries were made from the New York suppliers to the Surine
complex every other day. Occasionally Paul Surine would send others to the Rochester
and Elmira area to pick up the cocaine and bring it back to Tioga County for resale. On
at least one of those occasions, a firearm was exchanged for cocaine. Surine made
approximately 20 trips to New York to purchase cocaine, bringing back anywhere from
10 to 32 grams to Tioga County each time. Approximately 100-200 individuals
purchased cocaine at the Surine complex. Surine was one of several people who sold
cocaine at the Surine complex. On one occasion, he sold cocaine to an undercover law
enforcement officer.
Surine was arrested on February 1, 2007, and on August 1, 2007, was charged with
conspiracy with intent to distribute 50 grams or more of cocaine base in violation of
21 U.S.C. § 846. He pled guilty to that charge on September 5, 2007. On July 14, 2009,
the District Court held a sentencing hearing, at which it granted the Government’s Motion
Recommending Downward Departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e), applied a two-level enhancement because firearms were possessed and traded
during the conspiracy, and denied Surine’s request for a minor role adjustment. Although
the statutory minimum sentence Surine faced was 10 years of imprisonment, and the
Sentencing Guidelines recommended a pre-departure sentencing range of 87 to 108
months of imprisonment, the District Court sentenced Surine to 60 months of
imprisonment, three years of supervised release, and a special assessment of $100.

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II.
In considering Surine’s challenges to his sentence, we “review factual findings
relevant to the [Sentencing] Guidelines for clear error and . . . exercise plenary review
over a district court’s interpretation of the Guidelines. United States v. Grier, 475 F.3d
566, 570 (3d Cir. 2007) (en banc). “A decision is clearly erroneous if the reviewing court
is left with the definite and firm conviction based on all the evidence that the trial court
made a mistake.” United States v. Perez, 280 F.3d 318, 351 (3d Cir. 2002) (citing United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948), and Davis v. United States
Steel Supply, No. 2571, 1981 WL 26981, at *6 (3d Cir. Sept. 24, 1981), vacated on other
grounds, 688 F.2d 166 (3d Cir. 1982)). Additionally, we review the sentence imposed by
the District Court for abuse of discretion. United States v. Sevilla, 541 F.3d 226, 230 (3d
Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
III.
Surine argues that the District Court improperly imposed the firearm enhancement
based upon testimony that was not made part of the record at sentencing and that was
insufficient to establish the applicability of the enhancement. The Government bears the
burden of establishing by a preponderance of the evidence that a sentencing enhancement
applies. United States v. Napier, 273 F.3d 276, 279 (3d Cir. 2001). The Sentencing
Guidelines provide that a defendant’s offense level is increased by two levels if a
dangerous weapon, including a firearm, was possessed during the offense. U.S.S.G.

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§ 2D1.1(b)(1). If a defendant himself did not possess the dangerous weapon, imposition
of the enhancement is permissible based upon the possession by another person if such
possession was a “reasonably foreseeable act[] . . . in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B); see also United States v.
Thornton, 306 F.3d 1355, 1358 (3d Cir. 2002).
In imposing the firearm enhancement, the District Court clearly identified several
bases for its decision: Surine’s grand jury testimony, the testimony of other
co-conspirators, and Surine’s testimony at a co-defendant’s sentencing that he was at his
father’s trailer almost every day. At the sentencing hearing, the District Court read from
a transcript of Surine’s grand jury testimony in which Surine testified that he had seen his
father sell guns on at least one occasion. After identifying other instances of testimony
that established that Paul Surine traded guns for crack cocaine, the District Court
concluded that Surine knew that the possessing and trading of firearms was taking place
in furtherance of the conspiracy because he had seen it himself. Even assuming arguendo
that the District Court could not properly consider Surine’s other testimony or the
testimony of his co-defendants, the portion of Surine’s grand jury testimony that was read
into the record at sentencing is sufficient to support the District Court’s imposition of the
firearms enhancement, as it demonstrates that Surine knew that his father sold guns as
part of the drug trafficking conspiracy and saw at least one such sale take place.
Therefore, we conclude that the Government proved by a preponderance of the evidence

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that the firearm enhancement applied, and that the District Court did not err in imposing
the enhancement.
IV.
Surine next argues that the District Court erred in denying his request for a minor
role adjustment pursuant to U.S.S.G. § 3B1.2(b) because he was significantly less
culpable than his co-conspirators. Specifically, he contends that although he traveled to
Rochester with other co-conspirators to purchase cocaine and assisted the conspiracy as a
drug courier, he took his orders directly from his father and did not play a role in
organizing operations, negotiate payments, exercise control over anyone else, or share in
the profits.
The Sentencing Guidelines provide that a defendant’s offense level may be
reduced by two levels “[i]f the defendant was a minor participant in any criminal
activity.” U.S.S.G. § 3B1.2(b). The comments to the Guidelines define a minor
participant as one “who is less culpable than most other participants, but whose role could
not be described as minimal.” Id. cmt. n.5. By contrast, a minimal participant is one
“who plays a minimal role in concerted activity[,]” is “plainly among the least culpable of
those involved in the conduct of a group[,]” and whose “lack of knowledge or
understanding of the scope and structure of the enterprise and of the activities of others is
indicative of a role as minimal participant.” Id. cmt. n.4. The sentencing court is
afforded broad discretion in the application of this section, which is “heavily dependent

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on the facts of a particular case.” United States v. Isaza-Zapata, 148 F.3d 236, 238
(3d Cir. 1998). Factors to be considered in determining whether a minor participant
adjustment is warranted include “‘the nature of the defendant’s relationship to other
participants, the importance of the defendant’s actions to the success of the venture, and
the defendant’s awareness of the nature and scope of the criminal enterprise.’” United
States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991) (quoting United States v. Garcia,
920 F.2d 153, 155 (2d Cir. 1990)).
At the sentencing hearing, the District Court summarized the Probation Officer’s
position and heard arguments from the Government and Surine’s counsel regarding
whether an adjustment was warranted. The District Court then concluded that there had
been many participants with limited roles and that there was no basis to find that Surine
was substantially less culpable than the average participant and therefore entitled to a
minimal role adjustment. That Surine may have been following his father’s orders and
had no part in the organization of the trafficking conspiracy, or that his role, as described
by his counsel, was that of a courier or mule, does not mean that he is automatically
entitled to a minor role adjustment. See, e.g., Headley, 923 F.2d at 1084 (noting that
“[t]he fact that a defendant’s participation in a drug operation was limited to that of
courier is not alone indicative of a minor or minimal role”); see also United States v.
Walker, 1 F.3d 423, 427-28 (6th Cir. 1993) (finding that the mere fact that defendant
courier “was less culpable than ‘organizers, leaders, managers, or supervisors’ [did] not in

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itself establish that the defendant was a minor participant”); United States v. Buenrostro,
868 F.2d 135, 138 (5th Cir. 1989) (rejecting the argument that, as a matter of law,
minimal participant status may be inferred from courier status). Therefore, we conclude
that the District Court did not err in denying Surine’s request for a minor role adjustment.
V.
Surine next argues that the District Court improperly considered only one of the
five enumerated factors set forth in U.S.S.G. § 5K1.1 in granting the Government’s
motion for a substantial assistance departure. Section 5K1.1 of the Sentencing Guidelines
permits the sentencing court, upon motion by the government, to depart from the
guidelines where “the defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense.” U.S.S.G. § 5K1.1.
Section 5K1.1(a) further provides that in determining the appropriate reduction, the
sentencing court should consider the following factors:
(1) the court’s evaluation of the significance and
usefulness of the defendant’s assistance, taking into
consideration the government’s evaluation of the
assistance rendered;
(2) the truthfulness, completeness, and reliability of any
information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to
the defendant or his family resulting from his
assistance;

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(5) the timeliness of the defendant’s assistance.
Id. “[A] District Court has authority to refuse or grant a downward departure under
§ 5K1.1 and is granted broad discretion in determining the extent of the reduction.”
United States v. Carey, 382 F.3d 387, 392 (3d Cir. 2004). However, it must indicate its
consideration of the § 5K1.1 factors, as well as any other factors it deems relevant, in
determining whether and to what extent to grant a reduction. United States v. Torres,
251 F.3d 138, 147 (3d Cir. 2001). We have “strongly urge[d] sentencing judges to make
specific findings regarding each factor and articulate thoroughly whether and how they
used any proffered evidence to reach their decision.” Id. The sentencing judge therefore
must “conduct an individualized examination of the defendant’s substantial assistance . . .
[and] acknowledge § 5K1.1’s factors in his or her analysis.” Id.
The record demonstrates that the District Court agreed with the Government’s
analysis of the § 5K1.1 factors in its adoption of the Government’s recommendations and
grant of a two-level downward departure. The Government presented a Motion
Recommending Downward Departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e) that recommended a two-level departure. The Government’s Motion tracked
the § 5K1.1 factors, suggesting that Surine satisfied those factors as follows: (1) Surine
was willing to testify against other co-defendants; (2) Surine’s cooperation was
significant because he testified against other co-defendants and provided valuable
information regarding the drug suppliers; (3) the information Surine provided to the

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Government was corroborated by other witnesses; (4) Surine faced a risk of injury by
being incarcerated in a county prison with other co-defendants; and (5) Surine’s
cooperation was timely. The Government also provided a more detailed description of
Surine’s cooperation in its Sentencing Memorandum, which the District Court
considered. The District Court granted the Motion Recommending Downward Departure
and imposed a sentence significantly less than the statutory minimum of 10 years or the
Guidelines range of 87 to 108 months of imprisonment. Consequently, we find that the
District Court indicated its consideration of the § 5K1.1 factors and did not err in its
interpretation of the Guidelines in granting the Government’s Motion Recommending
Downward Departure.
VI.
Finally, Surine argues that the District Court failed to follow the three-step process
outlined in Gunter in determining an appropriate sentence, and that the sentence imposed
by the District Court was unreasonable in its totality. In reviewing the District Court’s
sentence for abuse of discretion, we follow a two-step process: first, we must “‘ensure
that the district court committed no significant procedural error.’” Sevilla, 541 F.3d at
230 (quoting Gall, 552 U.S. at 51). Next, if we “‘determine that the district court has
committed no significant procedural error, we then review the substantive reasonableness
of the sentence under an abuse-of-discretion standard, regardless of whether it falls within

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Section 3553(a) requires the district court to consider the following factors in2
determining the appropriate sentence:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed --
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for --
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines
. . .
(5) any pertinent policy statement --
(A) issued by the Sentencing Commission . . . subject to any
amendments made to such policy statement by act of
Congress . . .
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the Guidelines range.’” Id. (quoting United States v. Wise, 515 F.3d 207, 218 (3d Cir.
2008), and citing Gall, 552 U.S. at 51).
A.
Surine argues that this case must be remanded for resentencing because the District
Court failed to adhere to the three-step process set forth in Gunter, and instead ruled on
the Government’s § 5K1.1 motion only after it heard arguments on the § 3553(a) factors.
The district court must follow a three-step process to determine the appropriate sentence:
“(1) calculate the applicable Guidelines range, (2) formally rule on any departure motions,
and (3) exercise its discretion in applying the factors set forth in 18 U.S.C. § 3553(a).” 2

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(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct;
and
(7) the need to provide restitution to any victims of the offense.
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United States v. Grier, 585 F.3d 138, 141-42 (3d Cir. 2009) (citing Gunter, 462 F.3d at
247). The District Court followed this process in the correct sequence. First, the District
Court calculated the Guidelines range as 87 to 108 months. Next, it heard arguments
from Surine’s counsel and the Government regarding the § 5K1.1 motion. The District
Court then heard arguments from both parties regarding the § 3553(a) factors. Next, the
District Court ruled on the § 5K1.1 motion. Only after that did the District Court discuss
the § 3553(a) factors. It is thus clear that although the District Court heard the parties’
arguments regarding the § 3553(a) factors before ruling on the § 5K1.1 motion, it ruled
on the § 5K1.1 motion before exercising its discretion in applying the § 3553(a) factors.
Accordingly, we find that the District Court did not commit a significant procedural error
and therefore did not abuse its discretion.
B.
Surine argues that the sentence imposed by the District Court was unreasonable
because he contends that the District Court failed to consider four § 5K1.1 factors, all of
which militated in favor of a greater downward departure. Surine further argues that the
sentence was unreasonable because the District Court failed to give adequate weight to
his history of physical and mental abuse at the hands of his father, which enabled his

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father to manipulate him into participating in the drug trafficking conspiracy. Since we
have determined that the District Court did not commit significant procedural error, we
review the substantive reasonableness of the District Court’s sentence for abuse of
discretion. Sevilla, 541 F.3d at 230 (quoting Wise, 515 F.3d at 218). “‘[A] district court
will be held to have abused its discretion if its decision was based on a clearly erroneous
factual conclusion or an erroneous legal conclusion.’” United States v. Hoffecker, 530
F.3d 137, 196 (3d Cir. 2008) (quoting Wise, 515 F.3d at 217). Ultimately, in considering
whether a sentence is reasonable, we examine “‘whether the record as a whole reflects
rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).’”
United States v. Goff, 501 F.3d 250, 254 (3d Cir. 2007) (quoting United States v. Grier,
475 F.3d 556, 571 (3d Cir. 2007) (en banc)). While the sentencing court must consider
all of the § 3553(a) factors, it need not explicitly comment on every factor if “‘the record
makes clear the court took the factors into account at sentencing.’” United States v.
Parker, 462 F.3d 273, 276 (3d Cir. 2006) (quoting United States v. Cooper, 437 F.3d 324,
329 (3d Cir. 2006)). In reviewing the sentence imposed by the District Court, we apply a
deferential standard and must affirm the District Court’s sentence “[a]s long as [it] falls
within the broad range of possible sentences that can be considered reasonable in light of
the § 3553(a) factors.” Wise, 515 F.3d at 218. An appellant bears the burden of proving
the sentence was unreasonable. Cooper, 437 F.3d at 332.

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To the extent that Surine asserts that his sentence was unreasonable because the
District Court failed to consider four § 5K1.1 factors, we have found that the District
Court did consider those factors. Moreover, we may not consider this argument, because
we lack jurisdiction to review the extent of a discretionary downward departure for
substantial assistance. Torres, 251 F.3d at 145 (citing United States v. Parker, 902 F.2d
221, 222 (3d Cir. 1990)).
Surine further contends that, in light of his history of suffering physical, verbal,
and sexual abuse, the District Court’s imposition of a 60-month sentence was grossly
unreasonable and its comments regarding his background were “no more than lip
service.” There is no dispute that Surine’s life history is tragic. However, it is clear that
the District Court gave serious consideration to Surine’s background. Before imposing a
sentence, the District Court heard from Surine’s counsel, who described the many horrors
Surine faced growing up. The District Court also heard from Surine himself, who
indicated that he took responsibility for his part in the conspiracy and described his
relationship with his family, his depression, and his drug addiction. Finally, the District
Court heard from the Government, which acknowledged Surine’s difficult youth but also
pointed out that Surine chose to return to his father’s household upon reaching 18 years of
age and that the drug conspiracy ruined many other lives.
After hearing from Surine and the Government, the District Court addressed the
§ 3553(a) factors, including Surine’s history and personal characteristics. The District

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Court first addressed the nature of the offense, noting the impact of the drug trafficking
conspiracy in which Surine was involved on individuals and families in the Tioga County
area. The District Court then discussed Surine’s history and characteristics, describing
his lack of criminal history and his troubled upbringing. The District Court remarked that
Surine’s “childhood and his youth have been . . . one of the most abusive, both mentally
and physically, that I’ve seen.” App. at 34a. The District Court then imposed a below-
Guidelines sentence in order “to take into account the . . . extraordinarily [sic] physical
and mental abuse that this defendant was subject to throughout his youth.” Id. at 35a. In
imposing a sentence of 60 months of imprisonment, the District Court stated its belief that
such a sentence was consistent to the extent necessary with the sentences imposed upon
other members of the conspiracy, as well as “necessary . . . to reflect the seriousness of
the offense, to promote respect for the law and to provide just punishment for the offense,
to afford adequate deterrence to criminal conduct and to protect the public from further
crimes of the defendant.” Id. at 35a.
In light of the record, which indicates that the District Court considered the
§ 3553(a) factors and imposed a sentence that reflects such considerations, we find that
Surine has not met his burden of proving that the sentence imposed by the District Court
was unreasonable. Accordingly, we conclude that the District Court did not abuse its
discretion in imposing a 60-month sentence.

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VII.
For the foregoing reasons, the judgment of the District Court will be AFFIRMED.

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