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Makin v. United States

June 17, 2009

ARTHUR MAKIN, APPELLANT
v.
UNITED STATES APPELLEE



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court is defendant's appeal of Magistrate Judge Malachy E. Mannion's sentence of six months confinement and $105 in court costs. (Doc.16 at 2, 4). Having been fully briefed, the matter is ripe for disposition.

I. Background

On February 20, 2009, United States Magistrate Judge Malachy E. Mannion sentenced the defendant, Arthur Makin (Makin), to six months imprisonment and imposed court costs of $105. (Doc.16 at 2,4). The sentence was based on Defendant Makin's plea of guilty on two counts of possession of a controlled substance in violation of 36 C.F.R. § 2.35(b)(2) and one count of operating a vehicle under the influence of marijuana in violation of 36 C.F.R. § 4.23(a)(2). (Doc. 16 at 1). The six-month total term consisted of two-month terms for each count, which were to be served consecutively. (Doc. 16 at 2). The United States requested a six-month term for each of the three counts to be served consecutively, (Transcript of Sentencing Proceeding, Exh. 1 to Government's Brief (Doc. 21) (hereinafter "T.") at 5). This sentence would have been the maximum allowed by statute. (Petty Offense Presentence Investigation Report, Exh. 3 to Government's Brief (Doc. 21) (hereinafter "P.R.") at 1).

The charges arose from citations issued on two occasions at the Delaware Water Gap National Recreation Area. (P.R. at 4). The first incident took place on May 25, 2008 and the second on August 7, 2008. (Id.). During the incident on August 7, 2008, the National Park Service Ranger discovered the defendant had a set of hand scales in his possession, in addition to the marijuana for which he was charged. (Id.). The defendant was not charged with the possession of drug paraphernalia. (Doc. 16 at 1).

During the sentencing hearing, Magistrate Judge Mannion stated: I am concerned when I look at the surrounding circumstances and facts of the case . . . As the government has mentioned, it's one thing to be caught with [a] personal possession amount of marijuana. It's another thing to be caught with scales that are used to weigh out marijuana. That is a completely different perspective in terms of the nature of the offense and the seriousness of the offense . . . I think it's serious when one has scales.

(T. at 6-7).

Magistrate Judge Mannion considered several other factors in determining the defendant's sentence. (Id.). He discussed the defendant's criminal history of twelve arrests with nine convictions including two for marijuana offenses. (Id. at 6). Another factor that the magistrate judge considered was the fact that the defendant tested positive for marijuana twice after his arrest. (Id. at 5, 7). However, the magistrate judge accepted the probation department's conclusion that the tests were residual positives from prior drug activity rather than new drug activity subsequent to arrest, indicating that "[the defendant was] perhaps serious about trying to turn [his] life around." (Id.). The magistrate judge then noted that the possibility that the defendant desires to turn over a new leaf should be weighed in light of his criminal history and that "there has to be [some] deterrence for both [the defendant] and . . . for society in general" from committing similar offenses in the future. (Id. at 7-8).

II. Jurisdiction

This court has jurisdiction to hear the matter pursuant to 18 U.S.C. 3742(a)(4), which establishes that a defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence . . . was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. United States v. Cooper, 437 F.3d 324, 328 n.3 (3d Cir. 2006) (quoting 18 U.S.C. § 3742(a)(4)).

III. Standard of Review

The Supreme Court requires that sentences be reviewed for reasonableness on appeal with that review guided by the factors enumerated in 18 U.S.C. § 3553(a). Cooper, 437 F.3d at 326-27 (citing United States v. Booker, 543 U.S. 220 (2005)). Those factors are:

(1) the nature and circumstances of the offense and the history and ...


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