US v. Richardson

Filing 920070206

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-4624

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus LARRY C. RICHARDSON, Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Chief District Judge. (1:02-cr-00062; 1:03-cr-00051)

Submitted:

January 19, 2007

Decided:

February 6, 2007

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John J. Pizzuti, MCCAMIC, SACCO, PIZZUTI & MCCOID, P.L.L.C., Wheeling, West Virginia, for Appellant. Rita R. Valdrini, Acting United States Attorney, John C. Parr, Assistant United States Attorney, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Larry C. Richardson appeals his sentence imposed after resentencing,* on his conviction for conspiracy to engage in

interstate travel in aid of a racketeering enterprise, in violation of 18 U.S.C. §§ 1952(a)(3), 371 (2000), and use of a telephone to facilitate the distribution of heroin, 21 U.S.C. §§ 843(b), (d)(1) (2000). Following a resentencing hearing, the district court

adopted its findings from the original sentencing hearing and imposed the same 108-month sentence it previously imposed. For the reasons set forth below, we affirm Richardson's sentence. Richardson first challenges the district court's

application of a preponderance of the evidence standard of proof in resentencing. This assertion is without merit. See United States

v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied, 127 S. Ct. 121 (2006) (after Booker, the sentencing court continues to make factual findings concerning sentencing factors by a

preponderance of the evidence).

Richardson also asserts that

because of the firearm enhancement, he was not eligible for a five hundred hour drug program. Richardson argues his sentence should

This court previously affirmed Richardson's convictions, but remanded his case to the district court for resentencing in accordance with United States v. Booker, 543 U.S. 220 (2005), which case was decided after the original sentencing hearing. See United States v. Richardson, No. 04-4076, 132 F. App'x 492 (4th Cir. 2005). - 2 -

*

be reduced by a year as if he had completed the program. disagree and conclude the argument is without merit. Finally, Richardson challenges the district

We

court's

refusal to grant him a variance based on the crack/powder cocaine disparity of the sentencing guidelines. The district court

properly rejected this request pursuant to our decision in United States v. Eura, 440 F.3d 625, 627 (4th Cir. 2006), petition for cert. filed, June 20, 2006 (No. 05-11659). Because the district court appropriately treated the guidelines as advisory, and properly calculated and considered the guideline factors, range we and the relevant 18 U.S.C. to § 3553(a) be (2000)

find

Richardson's

sentence

reasonable.

Accordingly, we affirm Richardson's sentence. oral argument because the facts and legal

We dispense with contentions are

adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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