United States v. Blackwell , 370 F. App'x 413 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY DARNELL BLACKWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00385-JAB-1)
Submitted: February 23, 2010 Decided: March 15, 2010
Before NIEMEYER, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Angela H. Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Darnell Blackwell appeals his sentence after
pleading guilty to attempting to possess with intent to
distribute 35.8 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(b), 846 (2006). On appeal, he contends
that his sentence is unreasonably high because he was sentenced
as a career offender, and the district court failed to account
for the cocaine/cocaine base sentencing disparity. We affirm.
We review a sentence imposed by the district court
under a deferential abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error, such as improperly calculating
the guideline range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, or failing to adequately explain the sentence.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. On appeal, we presume that a sentence
within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 192 (4th Cir. 2007).
Based on Blackwell’s prior convictions for felony
assault with a deadly weapon with intent to kill and felony
conspiracy to commit armed robbery, the probation officer
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determined that he was a career offender under U.S. Sentencing
Guidelines Manual § 4B1.1(a) (2007). As his statutory maximum
for the instant offense was forty years, his offense level was
thirty-four under USSG § 4B1.1(b). With a three-level reduction
for acceptance of responsibility and criminal history category
VI, Blackwell’s advisory guideline range was 188 to 235 months
in prison. Based on his substantial assistance, the Government
moved for a reduction of sentence under USSG § 5K1.1 and 18
U.S.C. § 3553(e) (2006), recommending that the district court
depart downward by forty percent from the applicable advisory
guideline range. This range would be 112.8 to 141 months.
Blackwell did not object to the facts or guideline
calculations in the presentence report. However, he argued that
the district court should sentence him below his applicable
guideline range based on the cocaine/cocaine base disparity, and
specifically, that he should be sentenced within the range that
would be applicable if his offense involved powder cocaine and
his statutory maximum was only twenty years. After a forty
percent reduction, this range would be 90.6 to 112.8 months.
The Government noted that the Sentencing Commission is required
by 18 U.S.C. § 994(h) (2006) to assure that career offenders
receive a sentence at or near the maximum term authorized, and
argued a reasonable sentence would be within his career offender
range after reduction based on the Government’s motion.
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The district court imposed a sentence of 120 months in
prison. In explaining its sentence, the court noted that it had
considered the parties’ arguments concerning the cocaine/cocaine
base disparity and the career offender guideline; that it had
discretion under Kimbrough v. United States, 552 U.S. 85 (2007),
to take any disparities into account; and that it had taken the
disparities into account in selecting a sentence. Considering
all the factors in the case, the district court made a finding
in its discretion that Blackwell’s sentencing range based on the
career offender guideline provided an appropriate starting point
in determining his sentence, and the court granted the
Government’s recommended forty percent downward departure.
On appeal, Blackwell argues that his sentence is
unreasonably high because it is based on an “unjust disparity
between a career offender sentenced for crack cocaine and a
career offender sentenced for powder cocaine.” As the district
court noted, it had discretion to consider Blackwell’s disparity
arguments in selecting a sentence, and it did so. We conclude
that the court did not abuse its discretion in sentencing him
based on the career offender guideline in this case, and his
sentence is both procedurally and substantively reasonable.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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