On Appeal from the United States District Court for the District of Delaware. (D.C. Crim. No. 02-cr-00141-1) Honorable Kent Jordan, District Judge.
The opinion of the court was delivered by: Greenberg, Circuit Judge
Submitted under Third Circuit LAR 34.1(a) November 9, 2006
BEFORE: SLOVITER, CHAGARES, and GREENBERG, Circuit Judges.
This matter comes on before the court on Eric Lloyd's appeal from a judgment of conviction and sentence entered August 23, 2005, based on his plea of guilty to a count in a superseding indictment charging him with conspiracy to possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846. The appeal raises issues limited to his resentencing after our remand for that purpose in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), pursuant to which the sentencing guidelines now are advisory. The district court prior to Booker sentenced Lloyd at the bottom of the applicable sentencing guideline range of 168 to 210 months to a 168-month custodial term to be followed by a 5-year term of supervised release. After our remand following Booker, the district court, which did not change its calculation of the sentencing range, again sentenced Lloyd to an 168-month custodial term to be followed by a 5-year term of supervised release.
The district court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Giaquinto, 441 F.3d 195, 197 (3d Cir. 2006); United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006). In adjudicating this appeal we recognize that, in general, a court of appeals gives deference to a district court's sentencing determinations and thus reviews sentences on an abuse of discretion basis. Id. at 330-32. But to the extent that this appeal involves contentions that the district court made mistakes of law, our review is plenary. See Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir. 1998). Nevertheless, insofar as Lloyd is advancing contentions that he did not preserve in the district court, our review is confined by the exacting plain error standards. See United States v. Merlino, 349 F.3d 144, 161 (3d Cir. 2003).
Lloyd advances three contentions on this appeal. First, he contends that the district court erred as he regards it as having established a presumptively correct range of reasonable sentences based on the sentencing guidelines rather than having treated the guidelines as being only one of several factors under 18 U.S.C. § 3553(a) for a court to consider before imposing sentence. Second, he contends that the court failed to offer a meaningful rationale for concluding that a sentence within the now advisory guidelines was the least sufficient sentence to achieve the purposes of punishment. Third, he contends that it was not reasonable for the court to determine that the sentence it imposed, though within the guidelines, was the least sentence sufficient to satisfy the purposes of punishment.
A. The District Court did not Place too Much Weight on the Advisory Sentencing Guidelines
Lloyd argues that the district court "imposed sentence under a fundamental misapprehension of the statutory framework which governs after [Booker]." Appellant's br. at 10. In this regard he contends that the court ignored Booker and instead "announced its own intention to follow the guidelines in all but unspecified exceptional cases." Id. at 12. He believes that the court was wrong as post-Booker "the guideline range is but one of numerous factors to be 'considered,' and that the Act plainly states that the range is to be treated as inherently neither more or less significant than any other factor." Id. at 13.
In particular, he takes issue with the district court's following statements:
And if I were to say, as your attorney is encouraging me, 'you know what, under [18 U.S.C. §] 3553, that feels too harsh to me, I'm just not going to pay any attention to that guideline range,' I would be ignoring what the elected representatives of the United States citizens have strongly encouraged and what I think to be wise and good public policy, which is a fair degree of predictability and consistency in sentencing across the country. . . . So I believe that guideline range is the thing that I should be looking to primarily.
Id. at 12;*fn1 app. at 122.
After our review of the matter we are satisfied that Lloyd's select extraction from the district court's remarks does not reflect fairly on what the court said. Rather, read as a whole and in context, these statements take on a ...