                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-2009

USA v. Alex Hetherington
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2564




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 08-2564
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                ALEX HETHERINGTON,

                                         Appellant
                                      ____________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. No. 2-07-cr-00596-1)
                      District Judge: Honorable William H. Walls
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 23, 2009

       Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges.

                                  (Filed: May 11, 2009 )
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Alex Hetherington pleaded guilty to conspiracy to distribute and possess with

intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 for

which he was sentenced to 312 months of imprisonment. On appeal, Hetherington argues
that the District Court did not give meaningful consideration to his extensive cooperation

as a factor warranting a variance and as a result his sentence is unreasonable. For the

reasons set forth below, we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       The conviction in this case stems from Hetherington’s involvement in a large-scale

drug trafficking organization based in Mexico. On February 27, 2007, Hetherington was

arrested in a parking lot in Carlstadt, New Jersey while he was in the process of

transferring 212 kilograms of “sham” cocaine from a co-conspirator’s vehicle to his own

vehicle (unbeknownst to him, law enforcement officers had discovered the actual cocaine

and replaced it with a cocaine-like substance as part of a controlled delivery).

Hetherington received Miranda warnings upon arrest but indicated his willingness to

cooperate. In the days following his arrest, Hetherington made numerous monitored

phone calls in an unsuccessful effort to obtain the three million dollars which constituted

his payment for delivery of the cocaine so that the Government could seize the money.

As a result of other monitored calls, Hetherington helped law enforcement officers seize

sixty-four pounds of methamphetamine, which led to the arrest of two other individuals

who worked with Hetherington.



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       On January 29, 2008, pursuant to a written agreement, Hetherington pleaded guilty

to a one-count superseding indictment which charged him with conspiring with others to

distribute and possess with intent to distribute five kilograms or more of cocaine contrary

to 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) and in violation of 21 U.S.C. § 846. In the plea

agreement, Hetherington stipulated that the amount of cocaine involved in his offense

was 212 kilograms. Hetherington’s base offense level of thirty-eight was adjusted

upwards four levels because of his leadership role in the offense and was reduced three

levels because of his acceptance of responsibility, thus resulting in a total offense level of

thirty-nine. This offense level, combined with a criminal history in category I, yielded a

Guidelines range of 262 to 327 months of imprisonment.

       At sentencing on May 12, 2008, the Government did not move for a departure

pursuant to U.S.S.G. § 5K1.1 because it believed Hetherington was not completely

truthful and forthright about his criminal activities, and Hetherington did not challenge

the Government’s decision not to request a downward departure. Hetherington did argue

that a variance from the Guidelines range was warranted in light of his cooperation as

well as his work as a missionary for two years in Honduras. The District Court sentenced

Hetherington to 312 months of imprisonment, five years of supervised release, and a

special assessment of $100. Hetherington timely appealed his judgment of sentence.




                                              3
                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction to review the District Court’s judgment of sentence pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742. We review sentences for both procedural and substantive

reasonableness under an abuse of discretion standard pursuant to Gall v. United States,

128 S. Ct. 586, 597 (2007).

                                            III.

       Hetherington argues that the District Court did not give meaningful consideration

to his “extensive cooperation” with the Government as a mitigating factor under 18

U.S.C. § 3553(a)(1). Hetherington contends that the District Court rejected his arguments

for a variance on the basis of his cooperation because of the Government’s decision not to

request a downward departure under U.S.S.G. § 5K1.1. The Government responds that

the District Court acted within its discretion when it considered and rejected the variance

arguments because Hetherington’s cooperation was not “outside of the mainstream of

cooperation.”

       Our post-Booker precedent instructs district courts to follow a three-step

sentencing process which entails calculating a defendant’s Guidelines sentence precisely,

formally ruling on any departure motions, and exercising discretion by considering the

relevant § 3553(a) factors. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).

Hetherington’s challenge to the District Court’s consideration of his variance arguments



                                             4
within the framework of § 3553(a) pertains only to the third step under Gunter. We have

explained that “[w]hile a listing of factors may not, alone, be sufficient to demonstrate the

necessary consideration of relevant factors,” such consideration can be reflected from

“the record as a whole.” United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007).

Along these lines, a district court need not “discuss and make findings as to each of the

§ 3553(a) factors if the record makes clear the court took the factors into account in

sentencing.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). We expect the

record to reflect a district court’s “recognition of, and response to, the parties’ non-

frivolous arguments.” United States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006).

       Here, in response to Hetherington’s arguments that the extent of his cooperation

warranted varying his sentence, the District Court stated: “I consider whatever you claim

he has done by way of cooperation as part of a general constellation of what makes this

person before me, what makes Alex Hetherington.” This statement reflects that the

District Court considered Hetherington’s cooperation as part of his overall history and

characteristics. Also, in response to Hetherington’s inquiry as to whether the District

Court was accepting his cooperation “as a 3553 consideration,” the District Court

explained: “I am considering this consideration and note that he has been given credit for

it in the acceptance of responsibility.” When Hetherington continued to press his

cooperation argument and characterized the “scope of the cooperation” as




                                               5
“extraordinary,” the District Court replied that “[i]t doesn’t take it out of the mainstream

of cooperation” and it “falls short.”

       Therefore, the record is clear that the District Court did consider Hetherington’s

arguments that he deserved a variance because of his cooperation but nonetheless was

unpersuaded by these arguments. Because the record reveals the District Court’s

consideration of Hetherington’s arguments for a variance in light of the § 3553(a) factors

as well as an explanation of why the District Court chose not to exercise its discretion to

vary his sentence, we cannot conclude that the sentence is unreasonable. See United

States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (explaining that the district court’s

decision not to give the defendant’s “mitigating factors the weight that [the defendant]

contends they deserve does not render [the] sentence unreasonable”).

                                             IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                              6
