On Appeal from the United States District Court for the Middle District of Pennsylvania, (D.C. No. 07-cr-00400), District Judge: Honorable John E. Jones III.
The opinion of the court was delivered by: Tashima, Circuit Judge
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 13, 2009
Before: FUENTES, CHAGARES, TASHIMA,*fn1 Circuit Judges
On July 16, 2008, Elmer Vazquez-Lebron ("Vazquez") was sentenced to 48 months' imprisonment for conspiracy to possess with intent to distribute 500 grams or more of cocaine hydrochloride, in violation of 21 U.S.C. § 846. Vazquez appeals, arguing that the District Court committed plain error by failing to give him the benefit of the downward departure that it granted in exchange for his substantial assistance in the prosecution of other offenders. We agree and, therefore, will vacate Vazquez's sentence and remand to the District Court for resentencing.
I. Facts and Procedural History
Vazquez pled guilty to one count of conspiracy to possess cocaine with intent to distribute. The District Court calculated Vazquez's offense level as 23, and his criminal history category as I. Under the Sentencing Guidelines, this yielded a range of 46 to 57 months' imprisonment. At sentencing, the District Court stated that, pursuant to the government's motion and U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 5K1.1, it would grant a one-level downward departure because of Vazquez's substantial assistance in the prosecution of others, reducing his offense level to 22. The sentencing range for offense level 22, category I, offenders is 41 to 51 months' imprisonment. Thus, the reduced sentencing range overlapped with Vazquez's initial sentencing range. The District Court sentenced Vazquez to 48 months' imprisonment -- within the new, lower guideline range, but also within the original, pre-departure guideline range. Vazquez did not raise any objection when the District Court imposed this sentence.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the sentence pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
Ordinarily, we review for abuse of discretion the procedures a District Court follows in sentencing a defendant. Gall v. United States, 128 S.Ct. 586, 597 (2007). Because, however, Vazquez did not object to the sentence, we review for plain error. United States v. Lloyd, 469 F.3d 319, 321 (3d Cir. 2006).
As we explained in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), sentencing, post-Booker,*fn2 requires a three-step process:
(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they ...