United States v. Anthony , 202 F. App'x 617 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5268
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN IVAN ANTHONY, a/k/a Van,
Defendant - Appellant.
No. 05-5269
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS DEAN SCOTT, a/k/a Bink, a/k/a Binky,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-02-241)
Submitted: September 15, 2006 Decided: October 13, 2006
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, GIATRAS & WEBB, Charleston, West Virginia; Dennis
H. Curry, Spencer, West Virginia, for Appellants. Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Kevin Ivan Anthony (Appeal No. 05-5268) and Carlos Dean
Scott (Appeal No. 05-5269) appeal their sentences imposed after
resentencing,* on their convictions of one count each of conspiracy
to distribute fifty grams or more of cocaine base and a quantity of
hydromorphone, and distribution of five grams or more of cocaine
base, and aiding and abetting same, in violation of 21 U.S.C.
§§ 846, 841(a)(1) (2000) and 18 U.S.C. § 2 (2000), respectively
(Anthony); and one count of conspiracy to distribute fifty grams or
more of cocaine base and a quantity of hydromorphone, and three
counts of distribution of five grams or more of cocaine base, in
violation of 21 U.S.C. §§ 846, 841(a)(1) (2000) and 18 U.S.C. § 2(2000), respectively (Scott). Following a resentencing hearing,
the district court adopted its findings from the original
sentencing hearing and imposed the same sentences it previously
imposed. The district court sentenced Anthony to 324 months’
imprisonment, five years of supervised released, and ordered that
he pay a $5000 fine. The district court sentenced Scott to 360
months’ imprisonment, five years of supervised release, and ordered
that he pay a $5000 fine. Anthony and Scott again appeal their
*
This court previously affirmed Anthony’s and Scott’s
convictions, but remanded their cases to the district court for
resentencing in accordance with United States v. Booker, 543 U.S.
220 (2005), which case was decided after their original sentencing
hearing. See United States v. Anthony, No. 03-4909 (4th Cir. Jul.
12, 2005) (unpublished).
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sentences, challenging: (1) the standard of proof used by the
district court; (2) the constitutionality and reasonableness of the
use of the 100:1 crack/powder cocaine differential in sentencing;
and (3) the district court’s imposition of the same sentence
previously imposed, and alleging that the district court’s sentence
resulted in unwarranted disparity, in violation of 18 U.S.C.A.
§ 3553(a)(6) (West 2000 and Supp. 2006). For the reasons set forth
below, we affirm Anthony’s and Scott’s sentences.
Appellants first challenge the district court’s
application of a preponderance of the evidence standard of proof in
resentencing. This assertion is without merit. See generally
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)
(“Consistent with the remedial scheme set forth in Booker, a
district court shall first calculate (after making the appropriate
findings of fact) the range prescribed by the guidelines.”); see
also United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir. 2005);
McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005);
United States v. Tabor, 439 F.3d 826, 830 (8th Cir. 2006).
Next, Appellants challenge the constitutionality and
reasonableness of the 100:1 crack/powder cocaine differential in
the advisory guidelines in the wake of Booker. We find Appellants’
equal protection challenge to be without merit. See, e.g., United
States v. Castillo, ___ F.3d ___, 2006 WL 2374281 (2d Cir. Aug. 16,
2006). Moreover, as we previously have held, a sentencing court
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may not properly substitute its view of an appropriate ratio
between crack cocaine and powder cocaine for that determined by
Congress. United States v. Eura, 440 F.3d 625, 633 (4th Cir.
2006), petition for cert. filed, June 20, 2006 (No. 05-11659). We
decline Appellants’ invitation to revisit our decision in Eura.
The district court here did not err in refusing Appellants’ request
to substitute its own ratio for that set forth in the advisory
guidelines. Id.Appellants also contend that the district court erred by
applying a “de facto mandatory Guidelines standard” in resentencing
them to the same sentence. During the resentencing hearing, the
district judge clearly and accurately enunciated this court’s
directive on remand, as well as its statutory and legal obligations
in resentencing Appellants, considered the arguments of counsel,
and decided that its original findings did not need to be altered.
We will affirm a post-Booker sentence if it is both reasonable and
within the statutorily prescribed range. United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). As Appellants’ sentences are
within the properly calculated advisory guideline range, they are
presumptively reasonable, see United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006), and we find
Appellants’ conclusory assertions on appeal to be insufficient to
overcome that presumption.
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Finally, Appellants contend that the sentences imposed on
them by the district court resulted in “unwarranted disparity” in
contravention of § 3553(a)(6), as compared to those sentences
imposed on co-defendants in the same prosecution. Merely noting
that co-defendants received lesser sentences is insufficient to
establish an unwarranted sentencing disparity, which renders a
within-Guidelines sentence unreasonable. See United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). The district
court properly rejected Appellants’ claim of disparity, as the
characteristics and circumstances of these individual Defendants
and the application of the advisory guidelines and § 3553(a)
factors to them produced the disparity, the disparity was not
unwarranted, and Appellants have failed to demonstrate error by the
district court in sentencing.
Accordingly, we affirm Anthony’s and Scott’s sentences.
Because the district court appropriately treated the guidelines as
advisory, and properly calculated and considered the guideline
range and the relevant § 3553(a) factors, we find their sentences
to be reasonable. 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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