Third Circuit disposition — 084540np-pdf

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4540
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UNITED STATES OF AMERICA
vs.
NORMAN LEE THOMAS,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 1-07-cr-00192-003)
District Judge: Sylvia H. Rambo
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Submitted Under Third Circuit L.A.R. 34.1(a)
September 30, 2009
Before: RENDELL, AMBRO and WEIS, Circuit Judges.
(Filed: October 7, 2009)
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OPINION
WEIS, Circuit Judge.
Defendant pleaded guilty to possession with intent to distribute cocaine and
cocaine base in violation of 21 U.S.C. § 841(a). In determining the applicable sentencing

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guideline, the District Court found that defendant had distributed cocaine base in excess
of 4.5 kilograms. Although the pre-sentence investigation report resulted in a Guideline
range of 262 to 327 months’ incarceration, that range was lowered to 240 months, the
statutory maximum. Responding to the government’s motion to a downward departure
and in consideration of the defendant’s ongoing and substantial cooperation, the Court
imposed a sentence of 139 months imprisonment and a three-year period of supervised
release.
Defendant contends that, in finding the amount of cocaine involved, the
Court erred by using evidence that he supplied in a proffer. The government asserts that
it had independent sources for determining the amount of illegal drugs, including
information provided by confidential informants before the defendant’s arrest, as well as
statements defendant made to the police before entering into the plea agreement. We
have carefully reviewed the sentencing proceedings, including the transcript of the
hearing, and conclude that the District Court did not err in finding that the quantity of
illegal drugs was calculated based on evidence independent of the proffer and was,
therefore, properly used in determining the sentence. See United States v. Grier, 475 F.3d
556, 570 (3d Cir. 2007) (en banc) (“this Court . . . review[s] factual findings relevant to
the Guidelines for clear error and . . . exercise[s] plenary review over a district court’s
interpretation of the Guidelines”); see also U.S.S.G. § 1B1.8(b)(1) (“The provisions of
subsection (a) [stating that self-incriminating information provided pursuant to plea

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agreement cannot be used in determining guideline range] shall not be applied to restrict
the use of information [ ] known to the government prior to entering into the cooperation
agreement”) (emphasis added).
We also conclude that the District Court gave “meaningful consideration”
to the 18 U.S.C. § 3553 factors and applied them reasonably to the circumstances of this
case. See United States v. Lessner, 498 F.3d 185, 203-04 (3d Cir. 2007) (holding that a
sentence is procedurally reasonable where the district court demonstrates “meaningful
consideration of the factors set forth at 18 U.S.C. § 3553(a)” and substantively reasonable
where it applies those factors “reasonably to the circumstances of the case”).
Accordingly, we will affirm the Judgment of the District Court.

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