United States v. Thompson , 426 F. App'x 148 ( 2011 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-4124
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    TIMOTHY WAYNE THOMPSON,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. William L. Osteen,
    Jr., District Judge. (1:08-cr-00496-WO-1)
    Submitted:   March 21, 2011                 Decided:   April 29, 2011
    Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
    Winston-Salem, North Carolina, for Appellant.    John W. Stone,
    Jr., Acting United States Attorney, Terry M. Meinecke, Assistant
    United   States  Attorney,   Greensboro,  North  Carolina,   for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Timothy Wayne Thompson appeals his 120-month sentence
    imposed after a guilty plea to one count of distribution of
    cocaine base in violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(B)
    (2006).    We affirm.
    Thompson, who twice sold cocaine base to an undercover
    police officer, also sold a hand grenade simulator and a ground
    burst simulator to the same officer.                  Thompson’s Presentence
    Investigation Report (“PSR”) recommended a two-level enhancement
    to his offense level for possession of a dangerous weapon.                    The
    district        court     overruled     Thompson’s       objection    to      the
    enhancement.        Thompson challenges that enhancement on appeal,
    claims     that     the      district   court       imposed   a   procedurally
    unreasonable sentence, and argues that a remand is necessary in
    light of the Fair Sentencing Act of 2010.
    A     sentence    is   reviewed   for    reasonableness   under    an
    abuse of discretion standard.            Gall v. United States, 
    552 U.S. 38
    , 51 (2007).          This review requires consideration of both the
    procedural and substantive reasonableness of a sentence.                   Id.;
    see United States v. Lynn, 
    592 F.3d 572
    , 575 (4th Cir. 2010).
    After determining whether the district court properly calculated
    the defendant’s advisory guideline range, this court must decide
    whether the district court considered the 
    18 U.S.C. § 3553
    (a)
    (2006) factors, analyzed the arguments presented by the parties,
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    and sufficiently explained the selected sentence.                   Lynn, 
    592 F.3d at 575-76
    ; see United States v. Carter, 
    564 F.3d 325
    , 330
    (4th Cir. 2009).       Properly preserved claims of procedural error
    are subject to harmless error review.               Lynn, 
    592 F.3d at 576
    .
    If the sentence is free of significant procedural error, the
    appellate court reviews the substantive reasonableness of the
    sentence.     
    Id. at 575
    ; United States v. Pauley, 
    511 F.3d 468
    ,
    473 (4th Cir. 2007).
    I.      Sentence Enhancement
    Under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
    (2009), a district court must increase a defendant’s offense
    level two levels if the defendant possessed a dangerous weapon
    during a drug offense. USSG § 2D1.1(b)(1).               The enhancement is
    proper when “the weapon was possessed in connection with drug
    activity that was part of the same course of conduct or common
    scheme as the offense of conviction.”           United States v. Manigan,
    
    592 F.3d 621
    , 628-29 (4th Cir. 2010) (internal quotation marks
    omitted).     Whether    the     district   court     properly    applied   the
    enhancement    under    USSG    § 2D1.1(b)(1)    is    reviewed     for    clear
    error.      United     States    v.   McAllister,      
    272 F.3d 228
    ,     234
    (4th Cir. 2001).       Under a clear error standard of review, this
    court will reverse only if “left with the definite and firm
    conviction that a mistake has been committed.”               United States v.
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    Harvey, 
    532 F.3d 326
    , 336-37 (4th Cir. 2008) (internal quotation
    marks omitted).
    The definition of “dangerous weapon” is found in the
    commentary    to   USSG      § 1B1.1.    That   section      defines    dangerous
    weapon as
    (i) an instrument capable of inflicting death or
    serious bodily injury; or (ii) an object that is not
    an instrument capable of inflicting death or serious
    bodily injury but (I) closely resembles such an
    instrument; or (II) the defendant used the object in a
    manner that created the impression that the object was
    such an instrument.
    USSG    § 1B1.1,   comment.      (n.1(D)).      Thompson      argues    that   the
    devices were neither dangerous weapons, nor did they resemble
    dangerous weapons because each was labeled “simulator.”                        The
    court    accurately    observed,     however,       that   each    simulator   was
    labeled “explosive” and each actually resembled the weapon it
    was designed to simulate.            In addition, the court emphasized
    that the warning labels on the stimulators state that the user
    should    immediately     throw    the     simulators      after    removing   the
    safety caps or pulling the detonation cords.                On these facts, we
    conclude that the district court did not clearly err in imposing
    the USSG § 2D1.1 enhancement.
    II.    Explanation of Sentence
    Thompson      next    argues     that    the    court    offered   an
    inadequate explanation of his sentence, despite the fact that he
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    requested a variance.       While the district court must conduct an
    individualized assessment of the defendant, the court is not
    required   to      “robotically      tick    through      § 3553(a)’s     every
    subsection” on the record.           United States v. Johnson, 
    445 F.3d 339
    , 345 (4th Cir. 2006).         The sentencing court’s explanation
    must be “sufficient ‘to satisfy the appellate court that [the
    district court] has considered the parties’ arguments and has a
    reasoned   basis    for   exercising    [its]   own     legal   decisionmaking
    authority.’”       United   States    v.    Boulware,    
    604 F.3d 832
    ,   837
    (4th Cir. 2010) (quoting Rita v. United States, 
    551 U.S. 338
    ,
    356 (2007)).       But when a sentencing court decides to simply
    apply the Guidelines, “doing so will not necessarily require
    lengthy explanation.”        Rita, 
    551 U.S. at 356
    . As we recently
    stated:
    Gall was quite explicit that district courts should
    provide more significant justifications for major
    departures than for minor ones.     But when a district
    court does not depart or vary at all, it may provide a
    less     extensive,    while    still    individualized,
    explanation.     This is because guidelines sentences
    themselves are in many ways tailored to the individual
    and   reflect   approximately  two   decades  of   close
    attention to federal sentencing policy.
    United States v. Johnson, 
    587 F.3d 625
    , 639 (4th Cir. 2009),
    cert. denied, Martin v. United States, 
    130 S. Ct. 2128
     (2010).
    (internal citations, quotation marks and brackets omitted).
    We conclude that Thompson’s claim is without merit.
    The district court discussed the seriousness of trying to sell
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    explosives in the course of a drug transaction, noted Thompson’s
    escalating       criminal       history,        and,     while      recognizing    the
    disparity between powder cocaine and cocaine base, declined to
    vary in light of the seriousness of the offense. We decline to
    disturb the sentence as unreasonable.
    III. Fair Sentencing Act
    Thompson also requests that his sentence be vacated
    and remanded in light of the Fair Sentencing Act of 2010.                           The
    Fair   Sentencing      Act,     which   reduces         the   cocaine/cocaine      base
    disparity       by   amending     the    drug        quantities      triggering    the
    statutory penalties, is not retroactive but only applicable to
    defendants who commit their offenses after its effective date.
    See United States v. Diaz, 
    627 F.3d 930
    , 931 (2d Cir. 2010);
    United States v. Brewer, 
    624 F.3d 900
    , 909 n.7 (8th Cir. 2010),
    petition for cert. filed, ___ U.S.L.W. ___ (U.S. Feb 24, 2011)
    (No.    10-9224);      United     States        v.   Bell,    
    624 F.3d 803
    ,    814
    (7th Cir. 2010); United States v. Gomes, 
    621 F.3d 1343
    , 1346
    (11th Cir. 2010),       petition      for       cert.   filed,    ___   U.S.L.W.    ___
    (U.S. Feb. 15, 2011) (No. 10-9271); United States v. Carradine,
    
    621 F.3d 575
    , 580 (6th Cir. 2010), cert. denied, ___ U.S.L.W.
    ___    (U.S.    Mar.   21,    2011)     (No.      10-8937).         Since   Thompson’s
    offense predates the effective date of the Fair Sentencing Act,
    it does not apply to his case.
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    Accordingly, we deny Thompson’s motion for leave to
    file a pro se supplemental brief and affirm the judgment of the
    district    court.     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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