United States of America v. Kasim A. Bookman

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3611
UNITED STATES OF AMERICA
v.
KASIM A. BOOKMAN,
Appellant
_______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 1-08-cr-00026-001)
District Judge: Honorable Renee M. Bumb
Submitted Under Third Circuit LAR 34.1(a)
November 16, 2009
Before: AMBRO, ALDISERT, and ROTH, Circuit Judges
(Opinion filed: February 9, 2010)
OPINION
AMBRO, Circuit Judge
Kasim Bookman pled guilty to a single-count indictment charging him with
unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).

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The District Court sentenced Bookman to 75 months’ imprisonment. He challenges that
sentence on two grounds: (1) the Court committed procedural error by applying a
presumption of reasonableness to the United States Sentencing Guidelines when
determining his sentence; and (2) the Court’s application of the 18 U.S.C. § 3553(a)
sentencing factors was substantively unreasonable. We disagree and therefore affirm.
I.
On August 8, 2007, police officers were patrolling a high-crime area of Camden,
New Jersey. While on patrol, the officers observed a disruptive crowd loitering at a street
corner. They got out of their car and approached the crowd. One officer spotted Kasim
Bookman placing his hands in the middle of his waistband, suggesting that he might be
attempting to conceal a weapon. Bookman then began to flee. The officers ordered him
to stop, but Bookman continued running. When he was finally apprehended, the officers
discovered a fully loaded (and operable) Smith & Wesson .38-caliber handgun in his
waistband.
A federal grand jury subsequently charged Bookman in a single-count indictment
for unlawful possession of a firearm by a convicted felon. Shortly thereafter, he pled
guilty. At Bookman’s sentencing hearing, the District Judge denied his motion for a
downward departure, considered the relevant sentencing factors under 18 U.S.C. §
3553(a), and (as already noted) sentenced Bookman to 75 months’ imprisonment. (The
sentence also included three years of supervised release.) Seventy-five months in prison

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The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have1
jurisdiction over Bookman’s challenge to his sentence under 18 U.S.C. § 3742(a) as well
as 28 U.S.C. § 1291.
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was within the advisory Guidelines range of 70-87 months. Bookman filed a timely
notice of appeal.1
II.
In imposing a sentence, the District Court must complete a three-step process.
First, the Court must “correctly calculat[e] the applicable Guidelines range.” Gall v.
United States, 552 U.S. 38, 49 (2007). The Guidelines serve as “the starting point and the
initial benchmark.” Id. From there, our “precedent instructs district courts to conduct a
second step, which is to ‘formally rule on the motions of both parties and state on the
record whether [they are] granting a departure and how that departure affects the
Guidelines calculation . . . .’” United States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008)
(citing United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)).
At step three, “after giving both sides the chance to argue for the sentences they
deem appropriate, the court must exercise its discretion by considering all of the
§ 3553(a) factors and determining the appropriate sentence to impose.” Id. at 216-17.
Bookman’s challenges are both related to this third step: first, that the District Court
committed procedural error by presuming that a within-Guidelines sentence was
reasonable; and second, that it imposed a substantively unreasonable sentence when it
applied the § 3553(a) sentencing factors.

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III.
As an appellate court, we are aware of our limited role in the federal sentencing
regime. Indeed, “appellate review of sentencing decisions is limited to determining
whether they are ‘reasonable.’” Gall, 552 U.S. at 46. “As an appellate court, our role is
two-fold.” Wise, 515 F.3d at 217. First, we must “ensure that the district court
committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, [or] failing to
consider the § 3553(a) factors.” Gall, 552 U.S. at 51.
Second, we “consider the substantive reasonableness of the sentence
imposed . . . .” Id. at 51. “For a sentence to be substantively reasonable, a district court
must apply the § 3553(a) factors reasonably to the circumstances of the case.” United
States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007). In this analysis,“[a]s long as a
sentence falls within the broad range of possible sentences that can be considered
reasonable in light of the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218.
Turning first to Bookman’s procedural argument, we conclude that the District
Judge did not presume that a within-Guidelines sentence was reasonable. See Gall, 552
U.S. at 50 (holding that a district judge “may not presume that the Guidelines range is
reasonable”). In particular, we reject Bookman’s argument that certain statements by the
Judge violated Nelson v. United States, 129 S. Ct. 890 (2009). In Nelson, the sentencing
judge unambiguously presumed the reasonableness of the Guidelines, explaining to the

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defendant that “the Guidelines are considered presumptively reasonable.” Id. at 891
(emphasis added). Despite Bookman’s efforts to cherry-pick certain passages from the
record to suggest reversible error, we reject his argument.
In this case, the record demonstrates that the Judge considered the Guidelines as
merely advisory. She correctly stated, “I am to begin my analysis with the [G]uideline
range and . . . give weight to the advisory [G]uideline range of 70 to 87 months, and I
will do that, but it will be one factor that I will consider . . . .” App. 166 (emphasis
added). The Judge added, “As the Supreme Court and the Third Circuit have stated, a
within-[G]uidelines range sentence is more likely to be reasonable than one that lies
outside the advisory guidelines range, and so I must consider the other factors that
determine whether or not a sentence within the [G]uideline range is supported.” Id.
From there, the Judge considered each of the § 3553(a) factors and concluded that, given
these factors in the context of this case, “a sentence within the [G]uideline range is
reasonable.” Id. at 167. Nowhere in the record is there any indication that she presumed
the reasonableness of the Guidelines, as did the judge in Nelson.
Because the District Judge committed no procedural error, we turn now to the
substantive reasonableness of Bookman’s sentence. He argues that the Judge misapplied
the § 3553(a) sentencing factors and assigned insufficient weight to several mitigating
factors, including his “motive for possessing the gun,” the “nuances of [his] prior record,”
and “the history and characteristics of the offender.” Appellant’s Brief 19-21. We reject

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U.S.S.G. § 2K2.1 is the Guideline governing the offense of felons in possession of2
firearms.
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this argument.
The record demonstrates that the Judge considered each of the § 3553(a)
sentencing factors in imposing her sentence and clearly articulated the dangers of a
firearm in the hands of Bookman, given his criminal history and the surrounding context
of his offense. This is a reasonable conclusion, even in light of various mitigating factors
offered by Bookman and his argument that the Judge gave too much weight to U.S.S.G. §
2K2.1. Although Bookman was only 22 years old when he committed the offense before2
us, he has been convicted multiple times for drug-related offenses (including the
distribution of cocaine on school property), as well as aggravated assault with a firearm
and providing false information to the police. In the current offense, Bookman was
convicted of carrying a loaded firearm on the streets of Camden. Given Bookman’s
criminal record, it was certainly reasonable for the District Judge to worry about
Bookman’s “evolving progression of criminal conduct.” Id. at 167.
* * * * *
In this context, we hold that Bookman’s sentence of 75 months was
reasonable, and that the District Court did not abuse its discretion in imposing this within-
Guidelines sentence. Hence we affirm.

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