United States v. Thomas Ray
706 F. App'x 755
| 3rd Cir. | 2017Background
- Thomas Ray pleaded guilty to distribution of oxycodone within 1,000 feet of a school in violation of 21 U.S.C. §§ 841(b)(1)(C) & 860(a); Guidelines base offense level converted oxycodone quantity to marijuana equivalent, yielding a guideline range of 110–137 months (reduced to 92–115 months after a 2-level §5K1.1 departure).
- Ray was serving an undischarged aggregate state sentence of 51–180 months for seven Tioga County convictions; the PSR and district court found only two state convictions (totaling 21 months) to be "related" to the federal offense for concurrency purposes, while five others (totaling 30 months) were deemed unrelated.
- The district court granted the Government’s §5K1.1 motion for substantial assistance and applied a two-level downward departure; the court declined Ray’s request for a larger departure.
- The federal sentence was imposed to run partially concurrently (71 months concurrent with the two related state convictions) and partially consecutive to the five unrelated state convictions.
- Ray appealed, arguing (1) the district court abused its discretion by limiting concurrency to 21 months (should have found more state sentences "related") and (2) the two-level §5K1.1 departure was procedurally deficient and an abuse of discretion.
- The panel held it had jurisdiction to review the concurrency determination but lacked jurisdiction to review the extent of the discretionary §5K1.1 departure (except where the district court failed to exercise discretion).
Issues
| Issue | Plaintiff's Argument (Ray) | Defendant's Argument (Government/District Court) | Held |
|---|---|---|---|
| Whether more than 21 months of Ray's undischarged state sentence should run concurrently because additional state convictions were "related" under U.S.S.G. §1B1.3/§5G1.3 | The burglary, theft, and solicitation convictions involving Dr. Terry were part of the same course of conduct or common scheme and thus related; concurrency should reflect that | The burglary/theft crimes occurred after and were distinct in purpose and harm from the drug distribution; only the two possession-with-intent convictions were related | Affirmed: district court did not abuse discretion; only 21 months were related and concurrent |
| Whether the district court procedurally erred or abused discretion in awarding only a two-level downward departure under U.S.S.G. §5K1.1 | Ray argued his cooperation (timely proffers, value in obtaining search warrant, led to co-defendants' pleas) warranted a larger departure (e.g., four levels) | District court applied Torres factors, made individualized findings, compared cooperation to similar cases, and exercised discretion to award two levels | Dismissed in part for lack of jurisdiction to review extent of discretionary departure; no reviewable error shown |
Key Cases Cited
- Setser v. United States, 566 U.S. 231 (federal courts have discretion to order sentences concurrent or consecutive)
- United States v. Swan, 275 F.3d 272 (3d Cir. 2002) (sentencing court’s concurrency decisions reviewed for abuse of discretion)
- United States v. King, 53 F.3d 589 (3d Cir. 1995) (remand required where district judge applied an across-the-board policy rather than individualized §5K1.1 consideration)
- United States v. Torres, 251 F.3d 138 (3d Cir. 2001) (factors for evaluating extent of substantial-assistance departures)
- United States v. Watson, 482 F.3d 269 (3d Cir. 2007) (appellate court lacks jurisdiction to review discretionary extent of downward departures under §5K1.1)