On Appeal from the United States District Court for the District of New Jersey. D.C. Crim. Action No. 04-cr-00205. Honorable Anne E. Thompson.
The opinion of the court was delivered by: ALARCÓN, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) April 25, 2006
Before: FUENTES, STAPLETON, and ALARCÓN,*fn1 Circuit Judges.
Ricardo McKoy appeals from the District Court's order sentencing him to the ten-year statutory minimum for conspiracy to distribute and possess with intent to distribute crack cocaine. He contends that the District Court erred in failing to sentence him below the statutory minimum pursuant to 18 U.S.C. § 3553(f). We affirm.
On January 20, 2005, Mr. McKoy pled guilty to conspiracy to distribute and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846. Mr. McKoy stipulated that the amount of cocaine base involved in the conspiracy was between 50 and 150 grams. This amount triggered a minimum sentence of ten years under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
The Presentence Report ("PSR") calculated a sentencing range of 108 to 135 months under the United States Sentencing Guidelines. The ten-year statutory minimum raised this range to 120 to 135 months. 21 U.S.C. § 841(a)(1), (b)(1)(A). The PSR concluded that Mr. McKoy was not eligible for relief from the ten-year mandatory minimum pursuant to § 3553(f). The PSR indicated that Mr. McKoy had four criminal history points based on adjudications of juvenile delinquency. Mr. McKoy had received varying combinations of probation, fines, community service and counseling at juvenile court proceedings. Had he not received the criminal history points for his juvenile dispositions, Mr. McKoy would have qualified for relief under § 3553(f).
The District Court imposed the statutory minimum sentence of 120 months on April 29, 2005. The District Court noted that it was bound by the statutory minimum, but for which it would have imposed a lower sentence. Mr. McKoy filed a timely notice of appeal on May 5, 2005. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Mr. McKoy argues that the District Court incorrectly treated his juvenile court dispositions as "sentences" for purposes of calculating his criminal history points. He also contends that under New Jersey law, his juvenile dispositions were "diversions," which are excluded from the criminal history calculation pursuant to U.S.S.G. § 4A1.2(f). Finally, he argues that the District Court erred in concluding that it did not have the discretion, under United States v. Booker, 543 U.S. 220 (2005), to impose a sentence below the statutory minimum. Our review of the District Court's interpretation of the Sentencing Guidelines and constitutional questions is plenary. United States v. Lennon, 372 F.3d 535, 538 (3d Cir. 2004). We review the District Court's finding of facts for clear error. Id.
Under § 3553(f), "the court shall impose a sentence pursuant to the guidelines promulgated by the United States Sentencing Commission . . . without regard to any statutory minimum sentence" when certain conditions are met. One condition is that the defendant must "not have more than 1 criminal history point, as determined under the sentencing guidelines." Id. at § 3553(f)(1). The Sentencing Guidelines in turn instruct the courts to assign "1 [criminal history] point under § 4A1.1(c) for each adult or ...