United States v. Richardson , 216 F. App'x 368 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4624
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY C. RICHARDSON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:02-cr-00062; 1:03-cr-00051)
Submitted: January 19, 2007 Decided: February 6, 2007
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Pizzuti, MCCAMIC, SACCO, PIZZUTI & MCCOID, P.L.L.C.,
Wheeling, West Virginia, for Appellant. Rita R. Valdrini, Acting
United States Attorney, John C. Parr, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry C. Richardson appeals his sentence imposed after
resentencing,* on his conviction for conspiracy to engage in
interstate travel in aid of a racketeering enterprise, in violation
of 18 U.S.C. §§ 1952(a)(3), 371 (2000), and use of a telephone to
facilitate the distribution of heroin, 21 U.S.C. §§ 843(b), (d)(1)
(2000). Following a resentencing hearing, the district court
adopted its findings from the original sentencing hearing and
imposed the same 108-month sentence it previously imposed. For the
reasons set forth below, we affirm Richardson's sentence.
Richardson first challenges the district court's
application of a preponderance of the evidence standard of proof in
resentencing. This assertion is without merit. See United States
v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied, 127 S.
Ct. 121 (2006) (after Booker, the sentencing court continues to
make factual findings concerning sentencing factors by a
preponderance of the evidence). Richardson also asserts that
because of the firearm enhancement, he was not eligible for a five
hundred hour drug program. Richardson argues his sentence should
*
This court previously affirmed Richardson's convictions, but
remanded his case to the district court for resentencing in
accordance with United States v. Booker, 543 U.S. 220 (2005), which
case was decided after the original sentencing hearing. See United
States v. Richardson, No. 04-4076, 132 F. App’x 492 (4th Cir.
2005).
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be reduced by a year as if he had completed the program. We
disagree and conclude the argument is without merit.
Finally, Richardson challenges the district court’s
refusal to grant him a variance based on the crack/powder cocaine
disparity of the sentencing guidelines. The district court
properly rejected this request pursuant to our decision in United
States v. Eura, 440 F.3d 625, 627 (4th Cir. 2006), petition for
cert. filed, June 20, 2006 (No. 05-11659).
Because the district court appropriately treated the
guidelines as advisory, and properly calculated and considered the
guideline range and the relevant 18 U.S.C. § 3553(a) (2000)
factors, we find Richardson’s sentence to be reasonable.
Accordingly, we affirm Richardson’s sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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