United States v. Thomas , 347 F. App'x 888 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4868
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    OLIVER DERWIN THOMAS,
    Defendant - Appellant.
    No. 07-4989
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    EDWIN LERON HAMMOND, a/k/a Edwin Leon Hammond,
    Defendant - Appellant.
    Appeals from the United States District Court for the Middle
    District of North Carolina, at Durham. William L. Osteen, Sr.;
    N. Carlton Tilley, Jr., Senior District Judges. (1:07-cr-00042-
    WLO)
    Submitted:    September 18, 2009            Decided:   October 9, 2009
    Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
    Salem, North Carolina; Louis C. Allen, III, Federal Public
    Defender, Eric D. Placke, Assistant Federal Public Defender,
    Greensboro, North Carolina, for Appellants. Anna Mills Wagoner,
    United States Attorney, David P. Folmar, Jr., Assistant United
    States Attorney, Clifford R. Lamar, II, Third Year Law Student,
    Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
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    PER CURIAM:
    Oliver       Derwin     Thomas        and    Edwin     Leron       Hammond    pled
    guilty    to    distribution          of    cocaine        base,     in    violation        of    
    21 U.S.C. § 841
    (a)(1), (b)(1)(B) (2006).                           They now appeal their
    respective 280-month and 262-month sentences, arguing that the
    sentences       are        unreasonable.              The      two        cases     have     been
    consolidated on appeal.              Finding no error, we affirm.
    We review a sentence for reasonableness, applying an
    abuse of discretion standard.                    Gall v. United States, 
    552 U.S. 38
    ,       , 
    128 S. Ct. 586
    , 597 (2007); see also United States v.
    Layton, 
    564 F.3d 330
    , 335 (4th Cir. 2009).                                 We conclude that
    Thomas’     and       Hammond’s       sentences        are     both        procedurally          and
    substantively             reasonable.            The        district        court     properly
    calculated          the    guidelines       range,         treated    the     guidelines          as
    advisory,      and        considered       the   applicable          
    18 U.S.C. § 3553
    (a)
    (2006) factors.            See United States v. Pauley, 
    511 F.3d 468
    , 473
    (4th Cir. 2007).             Moreover, the district courts’ sentences were
    based on their “individualized assessment” of the facts of the
    case.     United States v. Carter, 
    564 F.3d 325
    , 328 (4th Cir.
    2009).    Last, Thomas’ and Hammond’s within-guidelines sentences
    are presumptively reasonable on appeal.                             United States v. Go,
    
    517 F.3d 216
    , 218 (4th Cir. 2008).
    In    rebutting       the    presumption        of     reasonableness,            see
    United States v. Montes-Pineda, 
    445 F.3d 375
    , 379 (4th Cir. 2006)
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    (stating       presumption       may   be    rebutted      by    showing      sentence     is
    unreasonable        when       measured     against       the    § 3553(a)       factors),
    Thomas    argues     his       sentence     is    unreasonable        in     light   of   the
    Supreme        Court’s    subsequent        decision      in     Kimbrough      v.   United
    States, 
    552 U.S. 85
    ,                 , 
    128 S. Ct. 558
     (2007), and Amendment
    706 to the federal sentencing guidelines, which lowered the base
    offense level for crack offenses effective November 1, 2007.
    Thomas did not object to his presentence report based on the
    crack     cocaine/powder             disparity.           Applying         Amendment      706
    retroactively       offers       Thomas     no    relief.         Because      Thomas     was
    designated a career offender, his base offense level of thirty-
    seven was determined by the statutory maximum sentence of life
    imprisonment        applicable         to    his     offense          under    
    21 U.S.C. § 841
    (b)(1)(A), not the drug quantity found attributable to him.
    See     U.S.     Sentencing      Guidelines        Manual       § 4B1.1(b)(A)        (2006).
    Thus,    although        the    base    offense     level       corresponding        to   the
    determined drug quantity would be lower as a result of Amendment
    706,    the     amendment       is    ultimately     of     no    consequence        because
    calculation of Thomas’ offense level was driven by the career
    offender designation.            See USSG § 2D1.1(c)(8).
    In Kimbrough, the Supreme Court held that “it would
    not be an abuse of discretion for a district court to conclude
    when    sentencing       a     particular    defendant         that    the    crack/powder
    disparity yields a sentence ‘greater than necessary’ to achieve
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    § 3553(a)’s purposes, even in a mine-run case.”                               128 S. Ct. at
    575.        Because Thomas did not argue below that he should be
    sentenced below the advisory guidelines range based upon the
    crack/powder cocaine disparity in the guidelines, review is for
    plain error.       See United States v. Branch, 
    537 F.3d 328
    , 343
    (4th Cir. 2008), cert. denied, 
    129 S. Ct. 943
     (2009).                                 Assuming
    the    court’s    failure      to     consider           the    crack/powder         disparity
    constitutes error that was plain, it must still be established
    that the error affected the defendant’s substantial rights.                                See
    
    id.
          This court previously has “concluded that the error of
    sentencing a defendant under a mandatory guidelines regime is
    neither      presumptively         prejudicial            nor    structural,”          thereby
    requiring a showing of “actual prejudice.”                              United States v.
    White, 
    405 F.3d 208
    , 223 (4th Cir. 2005).                            Thus, the burden is
    on    the    defendant   to    establish           that    the       error   “affected     the
    district court’s selection of the sentence imposed.”                            
    Id.
    Here, the record is entirely silent on this issue and
    the record does not reveal a nonspeculative basis for concluding
    that the district court would have imposed a shorter sentence
    had it known it possessed the discretion to do so.                                     In any
    event,      Kimbrough    is   of    no    assistance            to   Thomas    because      his
    ultimate      guidelines      range      was       not    determined         based    on   drug
    quantity but on his status as a career offender.                                 See United
    States v. Ogman, 
    535 F.3d 108
    , 109 (2d Cir. 2008) (clarifying
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    that when “a district court sentences a defendant pursuant to a
    Guidelines        range    that    results             from    his     status    as    a    career
    offender,        and     without       reliance          upon     the     Guidelines’           drug
    quantity table and the crack powder ratio that it incorporates,
    the sentence does not present the type of error for which remand
    . . . is appropriate”); United States v. Jiminez, 
    512 F.3d 1
    , 8-
    9   (1st    Cir.       2007)   (“As     we    have       explained,        the   crack/powder
    dichotomy is irrelevant to the career offender sentence actually
    imposed      in     this       case.           Consequently,             the     decision        in
    Kimbrough . . .           is      of     only           academic         interest      here.”).
    Therefore, Thomas cannot demonstrate that the district court’s
    failure     to     consider      the     crack/powder            disparity       affected        his
    substantial rights.
    Thomas      also     argues          his        sentence    is     substantively
    unreasonable under § 3553(a) because his co-defendant, Hammond,
    received a shorter sentence by eighteen months.                                  He maintains
    that,      unlike      Hammond,     he       was       merely     a    facilitator         in   the
    offense.          He     further       argues          that     the     court    should         have
    considered his difficult childhood and disadvantaged life.                                      Both
    Thomas and Hammond pled guilty to the same offense and both were
    sentenced as career offenders.                     The sentence differential can be
    easily understood given that Thomas and Hammond were sentenced
    by different judges and Hammond attempted to cooperate with the
    Government.             Furthermore,          the        court        listened    to       defense
    6
    counsel’s    argument       concerning      Thomas’     background      and,    in   its
    discretion,       the    district       court   considered       more    significant
    Thomas’ recidivism.             The district court therefore did not abuse
    its discretion in imposing the chosen sentence.
    On appeal, Hammond maintains his 262-month sentence is
    unreasonable because it is greater than necessary to accomplish
    the goals of § 3553(a) and that the court did not have the
    benefit of the Gall decision in fashioning his sentence.                               In
    Hammond’s     case,       the     district      court    treated       the     properly
    calculated     guidelines         as    advisory,     considered       the     relevant
    § 3553(a) factors, and heard argument from the parties as well
    as   a   statement       from    Hammond.       The   court    clearly       took    into
    consideration Hammond’s possible cooperation with the Government
    and his lengthy criminal history in determining that a sentence
    at   the    low    end     of    the    guidelines      range,    as    specifically
    requested by Hammond, was appropriate.                   Hammond has simply not
    rebutted     the     appellate         presumption      that     his    sentence       is
    reasonable.        Accordingly, the district court did not abuse its
    discretion in imposing a 262-month sentence.
    We therefore affirm Thomas’ and Hammond’s sentences.
    We further deny Thomas’ motion to proceed pro se/appoint new
    counsel.     We dispense with oral argument because the facts and
    legal    contentions       are    adequately     presented       in    the   materials
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    before   the   court   and   argument   would   not   aid   the   decisional
    process.
    AFFIRMED
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