United States of America v. Tyrone Wells

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-1233
_____________
UNITED STATES OF AMERICA
v.
TYRONE WELLS,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 03-cr-0362-001)
District Judge: Honorable William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
September 8, 2009
Before: SCIRICA, Chief Judge, RENDELL and ALDISERT, Circuit Judges.
(Filed: September 11, 2009)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Defendant Tyrone Wells appeals his sentence of 143 months’ imprisonment,
arguing that the District Court erroneously believed that the Sentencing Guidelines were
mandatory. Although Wells acknowledges that the District Court properly applied a

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The 2007 Amendments to the Sentencing Guidelines had the effect of reducing,1
by two points, the base offense level for all crack offenses. Compare U.S. SENTENCING
GUIDELINES MANUAL § 2D1.1(c)(4) (2002) (amended Nov. 2007), with U.S.S.G. §
2D1.1(c)(5).
The District Court exercised jurisdiction under 18 U.S.C. § 3231, and our2
jurisdiction is proper under 28 U.S.C. § 1291.
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recently-enacted amendment to the Guidelines that permits a two-point reduction in his
base offense level based on the crack-cocaine disparity, Wells contends that the District1
Court assumed–incorrectly–that a further reduction in his sentence fully to account for the
crack-cocaine disparity was prohibited. He urges that, had the District Court known that
an additional reduction in Wells’s sentence were permissible, the District Court would
have reduced his prison term further. Accordingly, Wells asks the Court to vacate his
sentence and remand the case to the District Court for a determination of whether the
crack-cocaine disparity warrants a further reduction of his sentence.2
The unique history of this case, which is before our Court for the fourth time in
five years, deserves some discussion. In April 2004, Wells pled guilty to conspiracy to
possess, with intent to distribute, 50 grams or more of crack cocaine in violation of 28
U.S.C. § 846. Treating the Sentencing Guidelines as mandatory, the District Court
sentenced Wells to a term of 210 months’ imprisonment. Following the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005), we vacated Wells’s sentence
and remanded for reconsideration in light of Booker. See United States v. Wells (“Wells
I”), 156 F. Appx. 519 (3d Cir. 2005). On remand, the District Court reduced Wells’s

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sentence to 174 months—36 months less than the minimum term prescribed under the
Guidelines. Wells appealed, arguing that the Court failed meaningfully to consider the 18
U.S.C. § 3553(a) factors. We concluded, however, that the sentence imposed was
reasonable, and that no procedural error occurred. United States v. Wells (“Wells II”), 216
Fed. Appx. 204 (3d Cir. 2007). Wells filed a petition for writ of certiorari to the United
States Supreme Court. During the pendency of his petition, the Supreme Court issued its
opinion in Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), holding that a
district court may depart from the Guidelines based on the crack-cocaine disparity. The
Supreme Court vacated our decision in Wells II and remanded the case for
reconsideration. Wells v. United States (“Wells III”), --- U.S. ----, 128 S. Ct. 862 (2008).
On remand, we stated, “[W]e have no basis on which to conclude that the District Court
understood that it had discretion to consider the crack/cocaine disparity in imposing the
sentence on Wells.” United States v. Wells (“Wells IV”), 279 Fed. Appx. 100, 103 (3d
Cir. 2008). Accordingly, we directed the District Court to reconsider Wells’s sentence in
light of Kimbrough. At Wells’s re-sentencing, the District Court, applying the two-point
Guideline reduction permitted under the November 2007 amendment, reduced Wells’s
term of imprisonment to 143 months. Wells has appealed.
In Gall v. United States, --- U.S. ----, 128 S. Ct. 586, 597 (2007), the Supreme
Court stated that, “[r]egardless of whether the sentence imposed is inside or outside the
Guidelines range, the appellate court must review the sentence under an

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Wells also contends that he is entitled to a new sentencing hearing because the3
District Court failed adequately to consider the § 3553(a) factors at his re-sentencing.
Our remand, however, was narrow in scope. We directed the District Court solely to
determine whether the crack-cocaine disparity warranted a reduction in Wells’s sentence
under Kimbrough, 128 S.Ct 558. We did not identify any other deficiency in the Court’s
original analysis of the § 3553(a) factors, the adequacy of which is not disputed on
appeal. Accordingly, the District Court did not err in confining its inquiry on remand to
the crack-cocaine disparity.
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abuse-of-discretion standard.” The Court explained, further, that this standard governs
both the “procedural soundness” of a sentence and its “substantive reasonableness.” Id.
Wells’ appeal implicates the former issue– the procedural propriety of his sentence.3
In United States v. Gunter, we held that a District Court commits procedural error
when it imposes a sentence under a belief that it lacks discretion to consider the crack-
cocaine disparity. 462 F.3d 237, 248 (3d Cir. 2006). Wells contends that the District
Court assumed–erroneously–that its discretion to depart from the Guidelines based on the
crack-cocaine disparity was limited to the two-point reduction prescribed in the
November 2007 amendment to the Guidelines, and that a further reduction in Wells’s
sentence was impermissible. For his position, Wells relies on Judge Caldwell’s statement
during re-sentencing, “I’m sorry that I have to send you back to prison, but my hands are
pretty much tied.” A. 64. Wells contends that the Court’s reasoning contravenes
Kimbrough, which made clear that the Guidelines are advisory, that the November 2007
amendment merely effected a “partial remedy” for the crack-cocaine disparity, and that a
further reduction in a defendant’s sentence may be warranted under § 3553(a) in certain

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circumstances. 128 S.Ct. at 561.
We conclude, however, that Wells’s argument is premised on an unsupported
assumption—that the District Court believed that its authority to depart from the
Guidelines range was limited to the two-point reduction permitted under the November
2007 amendment. As noted, Wells’s argument relies entirely on Judge Caldwell’s remark
that his hands were “tied.” There is no indication, however, that Judge Caldwell
perceived the November 2007 amendment itself as tying his hands. Rather, we read
Judge Caldwell’s comment that, “I have to send you back to prison” as referring to the
statutory minimum term of imprisonment, ten years.
We find it especially unlikely that Judge Caldwell misapprehended his discretion
to depart from the Guidelines because we vacated Wells’ prior sentence precisely on that
ground, stating, “[W]e have no basis on which to conclude that the District Court
understood that it had discretion to consider the crack/cocaine disparity in imposing the
sentence on Wells.” United States v. Wells, 279 Fed. Appx. 100, 103 (3d Cir. 2008). The
District Court signaled its awareness of this issue on remand. A. 61. Further, in our order
remanding the case, we specifically cited Kimbrough, which held that the November 2007
amendment authorized–but did not limit a district court’s authority–to reduce a
defendant’s sentence to reflect the crack-cocaine disparity. The District Court’s
discretion to depart from the Guidelines range, moreover, was stressed by the government

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For example, Defense counsel specifically argued,4
Because this is a complete resentencing, Your Honor, the court does have
the discretion to not only consider this two-level reduction that’s been put
into place by the sentencing commission, but all of the factors pursuant to
18 U.S.C. § 3553(a). As the Court recognized in Kimbrough, Your Honor,
one of the, couple of portions from that opinion that the modest amendment
which became effective on November 1, 2007[,] yields sentences for crack
offenses between two and five times longer than sentences for equal
amounts of powder. The commission thus noted that it is only a partial
remedy to the problems generated by the crack/powder disparity, and the
court then went on to state that given the commission’s departure from its
empirical approach in formulating the crack guidelines and its subsequent
criticism of the crack/powder disparity, it would not be an abuse of
discretion to conclude when sentencing a particular defendant that the
crack/powder disparity yields a sentence greater than necessary to achieve
section 3553(a)’s purposes, even in a mine-run case.
A. 56-57.
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and defense counsel at the sentencing hearing. A. 56, 60. On these facts, we conclude4
that the District Court rejected a further reduction in Wells’s sentence not because it
misapprehended its authority to do so, as Wells contends, but rather because, as defense
counsel admitted, “[T]here is nothing extraordinary about the facts. It is a crack cocaine
case.” A. 57. The fact that the District Court imposed the guideline sentence prescribed
under the November 2007 amendment means that he believed it to be the appropriate
sentence; it in no way indicates that he believed he could not go lower. The District
Court properly appreciated its discretion to reduce Wells’s sentence based on the crack-
cocaine disparity, and we conclude that no procedural error occurred.
For the foregoing reasons, we will affirm the judgment of the District Court.

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