United States v. Randall McGee , 736 F.3d 263 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4664
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDALL JUSTIN MCGEE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:11-cr-00191-1)
Argued: September 20, 2013 Decided: November 18, 2013
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opinion,
in which Judge Keenan and Judge Floyd joined.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Monica D.
Coleman, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Lex A. Coleman, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. R. Booth Goodwin II, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.
DAVIS, Circuit Judge:
Randall Justin McGee was convicted in the Southern District
of West Virginia of possession with intent to distribute
oxycodone, in violation of 21 U.S.C. § 841(a)(1), and sentenced
to fifty-five months of imprisonment. On appeal, McGee
challenges the district court’s denial of his motion to suppress
drugs seized during a traffic stop. He also challenges his
sentence on two grounds: Whether the district court (1)
committed clear error in finding that a seizure of cash from
McGee occurring approximately two weeks before his arrest arose
from “relevant conduct” to the offense of conviction (and
thereby increased his sentencing range); and (2) committed
procedural error in failing to impose an individualized
sentence. We reject McGee’s contentions and affirm the judgment.
I.
A.
Law enforcement officers first encountered McGee on July
10, 2011, when police received a tip that a black male near a
Greyhound bus station in Charleston, West Virginia, was acting
suspiciously. Officers went to the station and approached the
man, later identified as McGee, who agreed to speak with them.
When first questioned, McGee said he was not traveling, but had
come to the bus station to meet a childhood friend. The officers
conducted a search of McGee’s person and found a bus ticket in
2
the name of Adam Lowe, for travel between Charleston, West
Virginia, and Detroit, Michigan. When the officers discovered
that McGee’s name did not match the name on the bus ticket, they
handcuffed him.
McGee denied that he was in possession of any contraband
and consented to a search of his bag. Inside the bag, the police
found $5,800 in cash. McGee stated he did not have a job and had
not had one for over a year. He claimed he was traveling with
$2,000 to see the mother of his child and/or his mother. The
police determined that McGee did not have a reasonable
explanation for his possession of the cash and seized the money.
Police contacted McGee’s mother, who said that McGee did
not yet have a child (though his girlfriend was pregnant at the
time). She also reported that McGee was in West Virginia
“earning money,” and that McGee was supposed to bring the money
back with him. J.A. 313. Police also seized McGee’s cell phone,
which had several text messages. One message was from his
brother, instructing McGee to have somebody else go into the bus
station and buy a ticket using a different name, and to wait in
the car while the ticket was purchased. Police believed other
texts were “drug-related,” such as a text stating, “Are they
moving? How many do you have left, and the total should be
$6,075.00.” Id.
The police released McGee without arresting him.
3
B.
A little more than two weeks later, on July 26, 2011, South
Charleston Police Officer Jonathan Halstead, a member of the
Metro Drug Unit, stopped a Dodge Avenger on I-77. Halstead
stopped the car after observing that the middle brake light
(located in the center of the back windshield) was not working
properly when the driver braked during a slowdown in traffic.
Halstead had the driver, Kardell Moore, get out of the car;
Moore volunteered to Halstead that his driver’s license was
suspended and the car was a rental. Halstead briefly spoke with
McGee, then seated in the front passenger seat, in order to
ascertain whether McGee had a valid driver’s license. Halstead
testified at the suppression hearing that McGee was nervous and
his hands were shaking. Halstead obtained identifying
information from McGee and called for backup. While Halstead was
checking McGee’s information, Officer David Richardson arrived
on the scene. 1
Halstead told Richardson what he had observed regarding
McGee, and Richardson agreed to speak with McGee. Richardson
spoke briefly with McGee and asked him to get out of the car.
McGee complied, and after exiting the vehicle he consented to a
1
A third officer, Owen Morris, arrived on the scene before
Detective Richardson. Morris did not witness the actual stop,
and he did not have any interaction with McGee.
4
search of his person. During the search, Richardson felt items
he believed were pills in McGee’s shorts. Richardson put McGee
in hand restraints, and shook a bag of pills out of McGee’s
shorts. The bag contained 246 oxycodone pills and 151
oxymorphone pills.
II.
A.
McGee was charged with possession with intent to distribute
oxycodone, in violation of 21 U.S.C. § 841(a)(1). He filed a
motion to suppress the drugs seized during the traffic stop.
Specifically, he disputed Halstead’s claim that the car had a
defective brake light. The court held a hearing, at which the
three police officers present at the scene testified.
Thereafter, the court issued an opinion denying the motion to
suppress, finding that Halstead’s testimony was “entirely
credible” and that he had probable cause to believe the driver
had committed a traffic violation by not having an operational
brake light. 2 J.A. 160.
A few weeks later, McGee filed a renewed motion to suppress
on the basis of newly obtained evidence. McGee again challenged
the validity of the stop, this time proffering evidence
2
It is illegal for a vehicle to have any non-operational
brake lights in West Virginia. W. Va. Code § 17C-15-18(b).
5
resulting from an investigation into the condition of the rental
car. That evidence tended to show that all the brake lights in
the vehicle were operational in November 2011, and there was no
record of a repair after the traffic stop in July 2011.
The court held another hearing on the matter. At the
hearing, the court heard further testimony from Halstead;
Patrick Kearns, an investigator with the Federal Defender’s
office; and Jason Tardiff, a risk manager with Enterprise Rent-
a-Car. Halstead again testified that he saw the defective brake
light prior to the traffic stop. Kearns testified that he found
the rental car at Enterprise’s car dealership in Kentucky, where
he tested the brake lights and found them to be fully functional
on November 18, 2011. Tardiff testified that it was customary
for Enterprise to keep a record of all complaints and repairs
made on any vehicle; there was no record of any complaints about
the defective brake light or any repair for a defective brake
light after the stop in July 2011.
The court denied McGee’s renewed motion to suppress. The
court noted that the government was relying exclusively on
Halstead’s testimony to meet its burden of showing by a
preponderance of the evidence that Halstead had probable cause
to stop the car. Specifically, the court held that “[a]lthough
Defendant’s evidence raises a serious factual issue, it is
ultimately insufficient to overcome Officer Halstead’s direct
6
and unimpeached testimony that the Avenger’s center brake light
was indeed nonoperational on July 26, 2011.” J.A. 264. The court
stated that Halstead was “frank and earnest, and his
recollection of the events of July 26, 2011, was unwavering.”
Id. The court pointed to two possible explanations, urged by the
government, for the lack of repair and/or record of a repair: a
temporary malfunction, such as an electric short, or that there
was a repair, but no record of it.
B.
Having denied the motions to suppress, the court conducted
a bench trial at which McGee did not contest the government’s
evidence. McGee only proceeded to trial in order to preserve his
right of appeal, and did not feel comfortable accepting certain
stipulations proposed by the government in plea negotiations.
The court found McGee guilty as charged.
C.
In advance of sentencing, the presentence investigation
report (“PSR”) laid out the “Offense Conduct,” describing the
traffic stop and McGee’s arrest, but also described the earlier
incident at the bus station. In accordance with the Guidelines,
the PSR converted the drugs seized from McGee during the traffic
stop into a marijuana equivalency. Over McGee’s timely
objection, the PSR also converted the $5,800 seized from McGee
at the bus station, stating the cash “is viewed as representing
7
proceeds of drug distribution,” since McGee was later found with
the drugs and “he has held no legitimate employment” since 2006.
J.A. 353. McGee’s base offense level under the Guidelines was 24
based on an equivalency calculation of 98.94 kg of marijuana,
including the 19.3 kg added by the cash proceeds equivalent.
Without the cash proceeds conversion, McGee’s base offense level
would have been 22. U.S.S.G. § 2D1.1(c)(9). After the reduction
for acceptance of responsibility, the final Guidelines range was
51 to 63 months (including the cash proceeds), instead of 41 to
51 months (without including the cash proceeds). 3
McGee objected to the inclusion of the drug equivalent for
the cash seized at the bus station, arguing that there was no
evidence to connect the funds to the July 26, 2011 stop. McGee
argued specifically that his possession of a ticket in a
different name and his lack of employment were insufficient to
support such a finding. McGee pointed out that there were no
3
In the PSR the Probation Officer recommended against an
adjustment for acceptance of responsibility, given that McGee
had a bench trial. McGee argued that his case falls into an
exception noted in the commentary to U.S.S.G. § 3E1.1, as he
only went to trial in order to preserve his right of appeal on
issues not related to his factual guilt. The government argued
that McGee should not be granted the adjustment because his
arguments against including the drug equivalent of the cash
seized at the bus station amounted to “frivolously denying
relevant conduct.” J.A. 306. Notably, the court rejected the
government’s argument and awarded the adjustment.
8
drugs seized with the money and that McGee was never arrested or
charged with anything related to the bus station incident.
The court held a sentencing hearing at which the government
explained the bus station incident. McGee accepted the
government’s factual proffer, acknowledging that there were
conflicting statements and suspicious behavior, but maintained
that there was no legitimate connection between the seizure of
the cash and the traffic stop two weeks later. The court took
the matter under advisement and continued the sentencing
hearing.
At the continued sentencing hearing, the court determined
that the government had met its burden of proof to show that the
cash involved relevant conduct. The court noted that it was “a
close call” but McGee’s conflicting explanations for his
presence at the bus station paired “with the fact that just two
weeks later, he was caught with a rather large bag of pills
. . . not very far at all from that bus station” were enough to
meet this burden. J.A. 322-23. The court therefore found a final
offense level of 22, a criminal history category of III, and a
Guidelines range of 51 to 63 months.
McGee requested a variant sentence of forty-one months,
noting that he had strong family support, secured employment
following his pre-trial release, was relatively young and just
“made a dumb mistake trying to take some shortcuts and passing
9
through this state.” J.A. 327. The government contended that
McGee intended to distribute the drugs in West Virginia and was
not just passing through, pointing out the bus station incident
two weeks before the traffic stop.
The court considered the Guidelines and the 18 U.S.C.
§ 3553(a) factors, and pronounced a sentence of fifty-five
months. The court noted that “stiffer sentences for these pill
cases are justified because of the seriousness of the offense”
and the necessity for deterrence. J.A. 332. The court pointed
out that there is “a problem with drugs coming into West
Virginia, particularly Southern West Virginia, from Detroit” and
that he hoped “that sentences in these cases where I have
defendants from Detroit . . . will send a message back to
Detroit that the drugs being brought here from Detroit are not
welcome and that serious punishments await people who bring
drugs here from Detroit.” J.A. 331, 332.
McGee objected to the court’s decision to use the sentence
to “send a message” to Detroit, and denied that there was any
evidence of drug trafficking in West Virginia. The court
overruled McGee’s objections, stating that it was within the
parameters of the § 3553(a) factors to consider the source of
the drugs. The court acknowledged that “implicit in that
sentence and my reasons for the sentence is that this defendant
was bringing those pills from Detroit to West Virginia” but that
10
it was reasonable to conclude that the drugs came from Detroit
to West Virginia given that was where McGee drove from, and
where all of his phone numbers were from. J.A. 337.
McGee filed a timely notice of appeal.
III.
McGee first challenges the district court’s denial of his
motion to suppress.
We review the factual findings underlying a district
court’s ruling on a motion to suppress for clear error and its
legal conclusions de novo. United States v. Vaughan, 700 F.3d
705, 709 (4th Cir. 2012) (citations omitted). When the district
court denies a motion to suppress, we view the evidence in the
light most favorable to the government. Id. The government bears
the burden of proof in justifying a warrantless search or
seizure. Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984); United
States v. Watson, 703 F.3d 684, 689 (4th Cir. 2013).
The Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const. amend.
IV. “Temporary detention of individuals during the stop of an
automobile by the police, even if only for a brief period and
for a limited purpose, constitutes a ‘seizure’ of ‘persons'
within the meaning of this provision.” Whren v. United States,
517 U.S. 806, 809–10 (1996). “Because an ordinary traffic stop
11
is ‘a limited seizure more like an investigative detention than
a custodial arrest,’ we employ the Supreme Court’s analysis for
investigative detention used in Terry v. Ohio, 392 U.S. 1
(1968), to determine the limits of police conduct in routine
traffic stops.” United States v. Guijon–Ortiz, 660 F.3d 757, 764
(4th Cir. 2011) (quoting United States v. Rusher, 966 F.2d 868,
875 (4th Cir. 1992)). Detention of passengers during a traffic
stop provides the basis for them to challenge the legality of
the stop under the Fourth Amendment. Brendlin v. California, 551
U.S. 249, 256-63 (2007).
“Observing a traffic violation provides sufficient
justification for a police officer to detain the offending
vehicle for as long as it takes to perform the traditional
incidents of a routine traffic stop.” United States v. Branch,
537 F.3d 328, 335 (4th Cir. 2008). The parties agree that a non-
functioning brake light is a violation of the law in West
Virginia. See W. Va. Code § 17C-15-18(b). The government relies
on Halstead’s testimony describing the non-operative brake
light, which the district court found “frank and earnest”; the
officer’s memory was “unwavering.” J.A. 264. McGee argues that
this testimony is uncorroborated and fatally undermined by the
testimony from Investigator Kearns and Enterprise’s Tardiff that
the brake lights were fully functional when Kearns tested them
12
in November 2011 and there were no repairs made between July
2011 (the time of the stop) and November 2011.
McGee seeks support from United States v. Ellington, 396 F.
Supp. 2d 695, 700-01 (E.D. Va. 2005), and Carmichael v. Village
of Palatine, 605 F.3d 451, 455 (7th Cir. 2010). In reliance on
those cases, he contends that where it is only an officer’s
testimony against subsequent evidence of operative brake lights,
the court must find that there is insufficient evidence of a
non-operative brake light. Even apart from the fact that these
cases are not binding authority on us, McGee reads far too much
into them. In both Ellington and Carmichael, police officers
cited a non-operative brake light as the reason for a traffic
stop, Ellington, 396 F. Supp. 2d at 700; Carmichael, 605 F.3d at
455, but in each, the suppression hearing judge made findings
materially unlike those made in the case at bar.
In Ellington, there was testimony from the defendant’s
father, who took possession of the car immediately after the
stop, and of a vehicle mechanic, each of whom attested that all
the brake lights were functional. See 396 F. Supp. 2d at 700.
Ultimately, the court found that the officers had made an
unreasonable mistake in concluding that the brake light was
inoperative. Id. at 701 (“[T]he standard is not whether the
brake light was actually non-functioning, but rather whether the
officers made a reasonable mistake in believing that the center
13
brake light was non-functioning[;] the Court must ask whether
the government has demonstrated by a preponderance of the
evidence that the officer’s mistake was reasonable. The Court
finds that the government has failed to surmount that burden.”).
The failure of the government to satisfy its burden of proof in
the circumstances of that case, therefore, has no relevance to
whether it did so on the facts here.
Carmichael is similarly unavailing to McGee. There, as is
frequently the case, the outcome of the suppression ruling
hinged entirely on witness credibility. Specifically, the police
officer conducting the stop told the individuals in the car that
he had pulled the car over because the car windows were tinted,
and the car did not have a front license plate, but he later
testified that he had observed inoperative tail and brake
lights. Carmichael, 605 F.3d at 454-55. The hearing judge made a
specific finding that the officer “out and out lied” under oath
regarding the brake light malfunction. Id. at 455.
This case, too, turns on credibility, but cuts the other
way, as the district court found the government satisfied its
burden. We “defer to a district court’s credibility
determinations, for ‘it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial
motion to suppress.’” United States v. Abu Ali, 528 F.3d 210,
232 (4th Cir. 2008) (quoting United States v. Murray, 65 F.3d
14
1161, 1169 (4th Cir. 1995)). This does not mean, of course, that
“a trial judge may insulate his findings from review by
denominating them credibility determinations, for factors other
than demeanor and inflection go into the decision whether or not
to believe a witness.” Anderson v. City of Bessemer City, 470
U.S. 564, 575 (1985). For instance, “[d]ocuments or objective
evidence may contradict the witness’ story; or the story itself
may be so internally inconsistent or implausible on its face
that a reasonable factfinder would not credit it.” Id.
The issue presented here is whether the district court
committed clear error in making the finding that it did, in the
manner that it did. Vaughan, 700 F.3d at 709. Although McGee’s
evidence that the brake light was not inoperative is
significant, it is nonetheless circumstantial and relies on the
untested reliability of a third party’s recordkeeping. In short,
the defense evidence falls short of establishing clear error by
the district court. Even if we might have reached a different
determination if presented with the same evidence in the first
instance, we cannot say that it was clear error for the district
court to rule as it did. Accordingly, we do not disturb the
district court’s ruling on the motion to suppress.
IV.
We turn now to McGee’s challenge to the procedural
reasonableness of his sentence. We review a sentence for
15
procedural reasonableness using the abuse-of-discretion
standard. United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010). In analyzing procedural reasonableness, we first
determine whether the district court correctly calculated the
advisory Guidelines range. Id. “The government bears the burden
of proving the facts necessary to establish the applicability of
[a sentencing] enhancement by the preponderance of the
evidence.” United States v. Garnett, 243 F.3d 824, 828 (4th Cir.
2001). We “review factual findings for clear error, and legal
conclusions de novo.” United States v. Davis, 679 F.3d 177, 182
(4th Cir. 2012).
A.
McGee first challenges his sentence on the ground that the
district court erred in including the drug equivalent of the
cash seized from him weeks before his arrest in its calculation
of his Guidelines range. We discern no error in the court’s
finding.
The base offense level in drug distribution cases is
determined on the basis of the quantity of drugs. United States
v. Pauley, 289 F.3d 254, 258 (4th Cir. 2002). The government
must prove by a preponderance of the evidence the quantity of
drugs for which a defendant is responsible. United States v.
Bell, 667 F.3d 431, 441 (4th Cir. 2012). Where police seize
cash and not drugs from a defendant, the cash can be converted
16
to a quantity of drugs consistent with the normal selling price
for the drugs. United States v. Sampson, 140 F.3d 585, 592 (4th
Cir. 1998).
McGee does not contest the quantity of drugs seized during
the traffic stop, only the addition of the drug equivalent from
the cash seized at the bus station. Under the Guidelines,
conduct which is in the “same course of conduct or common scheme
or plan as the offense of conviction” can be considered in the
calculation of the base offense level. U.S.S.G. § 1B1.3(a)(2).
Acts are in the “same course of conduct” if
they are sufficiently connected or related to each
other as to warrant the conclusion that they are part
of a single episode, spree, or ongoing series of
offenses. Factors that are appropriate to the
determination of whether offenses are sufficiently
connected or related to each other to be considered as
part of the same course of conduct include the degree
of similarity of the offenses, the regularity
(repetitions) of the offenses, and the time interval
between the offenses. When one of the above factors is
absent, a stronger presence of at least one of the
other factors is required.
U.S.S.G. § 1B1.3 cmt. 9(b).
McGee maintains that the government did not meet its
burden, as the only evidence that McGee’s presence at the bus
station was related to drug trafficking was: first, that McGee
gave several inconsistent stories for why he was in Charleston
at the bus station, and second, that McGee had text messages on
his phone which the police interpreted as relating to drugs.
17
McGee points out that there were no drugs found on him at the
bus station, and that none of the text messages actually stated
anything about “pills” or other drugs. The government contends
it was not clear error for the court to credit these two factors
as sufficient to find that McGee’s actions at the bus station
were a part of the “same course of conduct” involving the pills
on his person at the traffic stop.
McGee’s arguments fail. The police interacted with McGee
twice, both times in places of interstate transportation (once a
bus station, and the other on an interstate highway); once
seizing a substantial amount of cash, and the other a
significant quantity of drugs ready for distribution. McGee
could not provide a consistent explanation for why he had that
much cash on him when the police interviewed him at the bus
station. This, combined with his suspicious behavior in having a
ticket under someone else’s name and text messages which were
consistent with a drug trafficking scheme, is enough to make it
more likely than not that McGee was transporting drug proceeds
in the same series of actions as that which he was actually
charged with when he was found in possession of the pills.
The district court did not err in finding that the two
incidents comprised the same course of conduct or in adding the
drug equivalent of the cash seized when it calculated the drug
quantity that drove the calculation of McGee’s sentencing range.
18
B.
Finally, McGee challenges his sentence on the ground that
the district court erred in failing to afford him an
individualized assessment in arriving at his sentence. Gall v.
United States, 552 U.S. 38, 50 (2007) (sentencing court “must
make an individualized assessment based on the facts
presented”); United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009). McGee complains that the district court simply put
him in a class of people who brought drugs from Detroit and
sentenced him on that basis, pointing to the court’s emphasis on
using the sentence to “send a message” to offenders in Detroit.
J.A. 332.
Here, the district court offered a sufficiently
individualized rationale for its sentence, without undue
emphasis on McGee’s status as a nonresident importer of drugs
into the district. In addition to the statements about Detroit,
the court made numerous references to McGee’s criminal history,
the nature of the offense, and the need for deterrence. The
district court also specifically denied McGee’s request for a
variant sentence of forty-one months with an articulable
justification. We therefore find little merit in McGee’s
challenge.
Deterrence is a goal a sentencing court must take into
consideration. 18 U.S.C. § 3553(a)(2)(B) (“the need for the
19
sentence imposed . . . to afford adequate deterrence to criminal
conduct”); see, e.g., United States v. Montes-Pineda, 445 F.3d
375, 381 (4th Cir. 2006). The court’s belief that McGee, in
particular, needed to be deterred, as well as others similarly
situated, unquestionably was a valid consideration. Contrary to
McGee’s arguments, the court’s desire to send a message was not
just about the connection between McGee and Detroit, it was also
about McGee’s own criminal history. The court stated that
“[W]hat’s clear to me is that your prior contacts with the
criminal justice system, including the sentences you were given,
did not deter you from engaging in this activity. So it’s clear
that you need a stiffer penalty to get the message.” J.A. 332.
We pause to note that, viewed in isolation, some of the
district court’s comments evince a perilously close flirtation
with the line we drew in United States v. Diamond, 561 F.2d 557
(4th Cir. 1977)(per curiam). In that case, the district court
sentenced two defendants convicted of stealing interstate
shipments of cigarettes and, in doing so, noted that “the Court
takes a dim view of people coming down from New York to commit
their crimes in Virginia.” Id. at 559. Although we affirmed the
convictions, we vacated the sentences and remanded for
resentencing before a different district judge, holding:
The inference that the district judge considered as a
factor in sentencing the fact that defendants who
committed a crime within the district in which he
20
presided were nonresidents is inescapable. We cannot
permit a district judge who is an officer of a
national judicial system and who is enforcing a
national criminal code to be moved by such
considerations of parochialism in imposing sentences.
Id.
In fashioning the sentence in the case at bar the district
court relied in part on the fact that McGee brought narcotics
from out of state, and specifically from Detroit, Michigan. The
court stated:
Finally, it is, as [the prosecutor] indicates, no
secret that there is a problem with drugs coming into
West Virginia, particularly Southern West Virginia,
from Detroit. I don't know why that is, because there
are other cities that are closer to West Virginia that
we see much less drugs coming from, but for some
reason, people from Detroit seem to look at West
Virginia as a drug market for them to bring their
drugs to.
. . . .
I, in particular, hope that sentences in these cases
where I have defendants from Detroit, and you’re by no
means the first defendant I have had from Detroit,
will send a message back to Detroit that the drugs
being brought here from Detroit are not welcome and
that serious punishments await people who bring drugs
here from Detroit.
J.A. 331-32. 4 Defense counsel, acknowledging his responsibility
to zealously protect his client’s interests and to make an
4
Indeed, in an earlier appeal before us the district court
made clear that it has “always given stiffer sentences” to
“individuals bringing drugs into West Virginia from out of
state.” United States v. Perry, No. 2:10-cr-00139 (S.D. W. Va.
May 6, 2011) (ECF No. 101, at 15), aff’d, 456 Fed. App’x 226,
(Continued)
21
adequate record, respectfully, and understandably, objected to
the court’s above comments and thereby preserved the issue for
review.
Although, in light of Diamond, the record is not entirely
free of ambiguity, i.e., whether a resident drug dealer in West
Virginia, whose source of supply is out of state and who travels
herself to import those drugs into the district, would also be
subject to “stiffer sentences,” we conclude that the district
court did not err or otherwise abuse its sentencing discretion.
Ultimately, the district court sentenced McGee to a term of
imprisonment in the middle of the applicable advisory Guidelines
range (after awarding an acceptance of responsibility adjustment
over the government’s objection), and considered the particular
criminal history of the defendant, as well as the specifics of
his offense and the need for deterrence – all factors
appropriate for consideration under 18 U.S.C. § 3553(a).
Accordingly, we hold that the sentence was not procedurally
unreasonable for lack of individualized assessment.
2011 WL 6000705 (4th Cir. Dec. 1, 2011) (unpublished). See also
United States v. Loper, 293 F. App'x. 999 (4th Cir. 2008)
("Moreover, [the district court] stated that it believed the
sentence was appropriate given the amount of drugs involved in
this case, Loper's significant criminal history, and the fact
that Loper was involved in bringing drugs into West Virginia
from out of state.").
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V.
For the foregoing reasons, the judgment is
AFFIRMED.
23