United States v. Dishawn Omar Curry , 13 F. App'x 460 ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 00-2921
*
UNITED STATES OF AMERICA, * Appeal from the United
* States District Court
Plaintiff - Appellee, * for the District
* of Minnesota
v. *
* [UNPUBLISHED]
*
DISHAWN OMAR CURRY, *
*
Defendant - Appellant. *
*
Submitted: June 12, 2001
Filed: July 2, 2001
Before WOLLMAN, Chief Judge, HAMILTON1 and MURPHY, Circuit Judges.
PER CURIAM.
Dishawn Omar Curry (Curry) appeals his sentence of 216 months’
imprisonment following his plea of guilty to one count of
possession with intent to distribute powder cocaine and crack
cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). We
affirm Curry’s sentence.
I
Following entry of Curry’s plea of guilty to one count of
possession with intent to distribute powder cocaine and crack
cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), Curry
1
The Honorable Clyde H. Hamilton, United States Circuit Judge
for the United States Court of Appeals for the Fourth Circuit,
sitting by designation.
appeared before the district court for sentencing on July 26, 2000.
In accordance with the presentence report, the district court
determined Curry’s sentencing range under the United States
Sentencing Guidelines (the Sentencing Guidelines or USSG) to be 324
to 405 months’ imprisonment. Based upon substantial assistance
that Curry provided the government, the government made a motion
for downward departure in Curry’s sentence pursuant to 18 U.S.C.
§ 3553(e) and USSG § 5K1.1. The district court granted the
government’s motion and departed downward 108 months to a sentence
of 216 months’ imprisonment. Curry noted a timely appeal of his
sentence from the district court’s judgment entered July 26, 2000.2
II
On appeal, Curry challenges his sentence on the basis that the
district court did not sufficiently consider the particular
circumstances of his case in determining his sentence (i.e., no
individualized sentencing determination) in violation of the Due
Process Clause of the Fifth Amendment of the United States
Constitution and in violation of 18 U.S.C. § 3553(a)(1), (a)(2)(D).
According to Curry, the district court’s statements at his
sentencing hearing reveal that, in determining the extent of its
downward departure based upon the government’s substantial
assistance motion, the district court impermissibly focused
exclusively or nearly-exclusively on the sentences of other
defendants receiving the benefit of a downward departure based upon
the same type of motion. Curry’s challenge to his sentence is
without merit.
First, “the Constitution does not guarantee individualized
sentencing, except in capital cases.” United States v. Brittman,
872 F.2d 827, 828 (8th Cir. 1989). Thus, even assuming arguendo
that the district court did not afford Curry individualized
sentencing, Curry’s sentence cannot constitute a violation of his
right to due process under the Due Process Clause of the Fifth
Amendment. Id. Second, our careful review of the entire
sentencing transcript reveals that the district court complied with
2
The Honorable Donovan W. Frank, District Judge, United States
District Court for the District of Minnesota.
- 2 -
18 U.S.C. § 3553(a)(1), (a)(2)(D), which requires a district court,
“in determining a particular sentence to be imposed,” to consider
“the nature and circumstances of the offense and the history and
characteristics of the defendant” and “the need for the sentence
imposed . . . to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment
in the most effective manner.” Id. In short, contrary to Curry’s
proffered characterization, the record establishes that Curry
received the very individualized sentencing he claims the district
court denied him.
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
- 3 -