US v. Oliver Derwin Thomas

Filing 920091009

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4868 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OLIVER DERWIN THOMAS, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Oliver guilty to Derwin Thomas of and Edwin base, Leron in Hammond pled of 21 distribution cocaine violation U.S.C. 841(a)(1),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

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