US v. Oliver Derwin Thomas

Filing 920091009

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4868

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OLIVER DERWIN THOMAS, Defendant - Appellant.

No. 07-4989

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWIN LERON HAMMOND, a/k/a Edwin Leon Hammond, Defendant - Appellant.

Appeals from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Sr.; N. Carlton Tilley, Jr., Senior District Judges. (1:07-cr-00042WLO)

Submitted:

September 18, 2009

Decided:

October 9, 2009

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., WinstonSalem, North Carolina; Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellants. Anna Mills Wagoner, United States Attorney, David P. Folmar, Jr., Assistant United States Attorney, Clifford R. Lamar, II, Third Year Law Student, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Oliver guilty to Derwin Thomas of and Edwin base, Leron in Hammond pled of 21

distribution

cocaine

violation

U.S.C. § 841(a)(1), (b)(1)(B) (2006).

They now appeal their

respective 280-month and 262-month sentences, arguing that the sentences are unreasonable. The two cases have been

consolidated on appeal.

Finding no error, we affirm.

We review a sentence for reasonableness, applying an abuse of discretion standard. 38, Gall v. United States, 552 U.S.

, 128 S. Ct. 586, 597 (2007); see also United States v. We conclude that procedurally court and

Layton, 564 F.3d 330, 335 (4th Cir. 2009). Thomas' and Hammond's sentences The range, the are both

substantively calculated advisory, the and

reasonable. guidelines considered

district treated the 18

properly as

guidelines

applicable

U.S.C.

§ 3553(a)

(2006) factors. (4th Cir. 2007).

See United States v. Pauley, 511 F.3d 468, 473 Moreover, the district courts' sentences were

based on their "individualized assessment" of the facts of the case. 2009). United States v. Carter, 564 F.3d 325, 328 (4th Cir. Last, Thomas' and Hammond's within-guidelines sentences United States v. Go,

are presumptively reasonable on appeal. 517 F.3d 216, 218 (4th Cir. 2008). In rebutting the presumption

of

reasonableness,

see

United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) 3

(stating

presumption when his

may

be

rebutted against is

by the

showing

sentence

is

unreasonable Thomas Supreme argues

measured sentence

§ 3553(a) in

factors), of the

unreasonable in

light v.

Court's

subsequent

decision

Kimbrough

United

States, 552 U.S. 85,

, 128 S. Ct. 558 (2007), and Amendment

706 to the federal sentencing guidelines, which lowered the base offense level for crack offenses effective November 1, 2007. Thomas did not object to his presentence report based on the crack cocaine/powder offers disparity. Thomas no Applying relief. Amendment Thomas 706 was

retroactively

Because

designated a career offender, his base offense level of thirtyseven was determined by the statutory maximum sentence of life imprisonment applicable to his offense under 21 U.S.C.

§ 841(b)(1)(A), not the drug quantity found attributable to him. See Thus, U.S. Sentencing the Guidelines base offense Manual level § 4B1.1(b)(A) corresponding (2006). to the

although

determined drug quantity would be lower as a result of Amendment 706, the amendment is ultimately of no consequence because

calculation of Thomas' offense level was driven by the career offender designation. See USSG § 2D1.1(c)(8).

In Kimbrough, the Supreme Court held that "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder

disparity yields a sentence `greater than necessary' to achieve 4

§ 3553(a)'s purposes, even in a mine-run case." 575.

128 S. Ct. at

Because Thomas did not argue below that he should be

sentenced below the advisory guidelines range based upon the crack/powder cocaine disparity in the guidelines, review is for plain error. See United States v. Branch, 537 F.3d 328, 343 Assuming disparity

(4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009). the court's failure to consider the crack/powder

constitutes error that was plain, it must still be established that the error affected the defendant's substantial rights. id. See

This court previously has "concluded that the error of

sentencing a defendant under a mandatory guidelines regime is neither presumptively prejudicial nor structural," thereby

requiring a showing of "actual prejudice." White, 405 F.3d 208, 223 (4th Cir. 2005). on the defendant to establish that the

United States v. Thus, the burden is

error

"affected Id.

the

district court's selection of the sentence imposed."

Here, the record is entirely silent on this issue and the record does not reveal a nonspeculative basis for concluding that the district court would have imposed a shorter sentence had it known it possessed the discretion to do so. event, Kimbrough is of no assistance was not to Thomas In any his drug

because on

ultimate

guidelines

range

determined

based

quantity but on his status as a career offender.

See United

States v. Ogman, 535 F.3d 108, 109 (2d Cir. 2008) (clarifying 5

that when "a district court sentences a defendant pursuant to a Guidelines offender, range and that results from his status as a career drug

without

reliance

upon

the

Guidelines'

quantity table and the crack powder ratio that it incorporates, the sentence does not present the type of error for which remand . . . is appropriate"); United States v. Jiminez, 512 F.3d 1, 89 (1st Cir. 2007) ("As we have explained, the crack/powder

dichotomy is irrelevant to the career offender sentence actually imposed in this is case. of Consequently, only academic the decision in

Kimbrough . . .

interest

here.").

Therefore, Thomas cannot demonstrate that the district court's failure to consider the crack/powder disparity affected his

substantial rights. Thomas also argues his sentence is substantively

unreasonable under § 3553(a) because his co-defendant, Hammond, received a shorter sentence by eighteen months. that, unlike He Hammond, further he was merely that a the He maintains in the have Both

facilitator court

offense.

argues

should

considered his difficult childhood and disadvantaged life.

Thomas and Hammond pled guilty to the same offense and both were sentenced as career offenders. The sentence differential can be

easily understood given that Thomas and Hammond were sentenced by different judges and Hammond attempted to cooperate with the Government. Furthermore, the 6 court listened to defense

counsel's

argument the

concerning

Thomas'

background more

and,

in

its

discretion,

district

court

considered

significant

Thomas' recidivism.

The district court therefore did not abuse

its discretion in imposing the chosen sentence. On appeal, Hammond maintains his 262-month sentence is unreasonable because it is greater than necessary to accomplish the goals of § 3553(a) and that the court did not have the benefit of the Gall decision in fashioning his sentence. Hammond's calculated case, the district as court treated the the In

properly relevant

guidelines

advisory,

considered

§ 3553(a) factors, and heard argument from the parties as well as a statement from Hammond. The court clearly took into

consideration Hammond's possible cooperation with the Government and his lengthy criminal history in determining that a sentence at the low end of the guidelines range, as specifically

requested by Hammond, was appropriate. rebutted the appellate presumption

Hammond has simply not that his sentence is

reasonable.

Accordingly, the district court did not abuse its

discretion in imposing a 262-month sentence. We therefore affirm Thomas' and Hammond's sentences. We further deny Thomas' motion to proceed pro se/appoint new counsel. legal We dispense with oral argument because the facts and are adequately presented in the materials

contentions

7

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

8