US v. Carlos Woods

Filing 920090105

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-5067

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLOS WOODS, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:07-cr-00127-WDQ-1)

Submitted:

November 24, 2008

Decided:

January 5, 2009

Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT, P.C., Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, John W. Sippel, Jr., Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Carlos entered pursuant Woods to appeals the district after a court's jury judgment for

his

conviction

trial

possession with the intent to distribute cocaine and possession with the intent to distribute marijuana, both in violation of 21 U.S.C. § 841(a)(1) (2000). Woods was sentenced to 262 months' For the reasons that follow,

imprisonment on these convictions. we affirm. The evidence adduced at

trial

revealed

that

during

their surveillance of two Baltimore, Maryland avenues known for drug dealing, detectives with the Baltimore Police Department observed and videotaped Woods engaging in multiple hand-to-hand drug transactions with other persons. During this surveillance,

detectives observed Woods enter and exit from an alleyway and observed and videotaped Woods entering an alleyway and emerging from under the rear porch of a nearby residence. Woods was

placed under arrest, and detectives recovered vials and plastic bags, ultimately determined to contain 2.31 grams of powder

cocaine and 8.45 grams of marijuana, from underneath the porch. After his arrest, Woods waived his rights under Miranda v.

Arizona, 384 U.S. 436 (1966), and admitted that he had been selling cocaine and marijuana and that the drug stash under the back porch of the residence belonged to him.

2

First,

Woods

contends

that

he

was

subject

to As

vindictive prosecution, in violation of the Fifth Amendment.

grounds for this claim, Woods relies on statements made by the Government's attorney at Woods' detention hearing that Woods was being prosecuted in federal court, despite, in the words of the Government's attorney, "the relatively small quantity of cocaine and marijuana recovered," pursuant to the Baltimore, Maryland Exile Initiative as a "violent repeat offender." this Initiative, local police refer for federal Pursuant to prosecution

individuals who have been unsuccessfully prosecuted for their participation in crimes of violence. The Government's attorney

noted at the hearing that Woods, a career offender, had been unsuccessfully prosecuted for past violent crimes in state court and was therefore a target of the Exile Initiative. Woods

asserts that because he exercised his right to defend himself and was ultimately not convicted of murder and attempted murder in state court, he was vindictively targeted for federal

prosecution. To establish prosecutorial vindictiveness, a defendant must show that the prosecutor acted with genuine animus toward the defendant, and the defendant would not have been prosecuted but for that animus. (4th Cir. 2001). of a vindictive United States v. Wilson, 262 F.3d 305, 314

If a defendant cannot produce direct evidence motive, he 3 can establish a rebuttable

presumption

of

vindictiveness

by

showing

that

a

"reasonable

likelihood of vindictiveness exists." 457 U.S. 368, 373 (1982). shifts to the Government

United States v. Goodwin,

If he succeeds, the burden then to present objective evidence

justifying its conduct.

Id. at 374.

The evidence is viewed,

however, in the context of the "presumption of regularity" that attends decisions to prosecute. United States v. Armstrong, 517 Thus, "in the ordinary

U.S. 456, 464 (1996) (citation omitted).

case, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file . . . generally rests entirely in his discretion." Id.

(internal quotations omitted). We note at the outset that most successful vindictive prosecution claims involve retaliatory prosecutions by the same sovereign that earlier brought the defendant to trial. e.g., Goodwin, 457 U.S. at 381. vindictive altogether. prosecution was brought See,

Here, however, the alleged by a different sovereign

See United States v. Robinson, 644 F.2d 1270, 1273

(9th Cir. 1981) (expressing "doubt as to whether a prosecution could be condemned as `vindictive' when the defendant's claim is that one sovereign is punishing him for rights he asserted

against a different sovereign.").

Additionally, there is no

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claim that Woods was intimidated from exercising any right in any proceedings. Woods attempts to overcome this difficulty by pointing to the Government's attorney's statements at the detention

hearing that Woods was being prosecuted in federal court, at least in part, on account of his prior unsuccessful prosecutions in state court for murder and attempted murder. Even if we were

to assume there was some evidence of animus on the part of Maryland pursuant suggest law to that enforcement the the Exile in referring Woods is for no prosecution evidence made to the

Initiative,

there who

Government

official

actually

decision to prosecute Woods was motivated by any impermissible consideration. And we will not "impute the unlawful biases of

the investigating agents to the persons ultimately responsible for the prosecution." 314 (4th Cir. 1997). Finally, objective evidence in the record clearly United States v. Hastings, 126 F.3d 310,

supports the Government's decision to prosecute Woods in federal court. light of Given the facts adduced at trial, and especially in Woods' cause to own admission, that U.S. the Woods at 464. Government committed clearly the had

probable offenses.

believe 517

charged Woods'

Armstrong,

Accordingly,

vindictive prosecution claim fails.

5

Next,

Woods

contends

that

his

262-month

prison

sentence violates his Eighth Amendment right to be free from cruel and unusual punishment because the sentence is

disproportionate to the crime committed.

This court has held

that "proportionality review is not available for any sentence less than life imprisonment without the possibility of parole." United States v. Ming Hong, 242 F.3d 528, 532 & n.3 (4th Cir. 2001). Because Woods received a sentence of less than life the proportionality of his sentence cannot be

imprisonment,

reviewed on appeal. * Finally, unreasonable. Woods contends that his sentence is

We review Woods' sentence under a deferential See Gall v. United States, 128 S.

abuse of discretion standard. Ct. 586, 590 (2007).

To determine whether a sentencing court United

abused its discretion, we undertake a two-part analysis. States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

First, we

examine the sentence for "significant procedural errors," and second, we evaluate the substance of the sentence. Id.

Recognizing that Ming Hong is controlling, Woods contends that the decision conflicts with the Supreme Court's Eighth Amendment jurisprudence. However, even if proportionality review was available to Woods, his sentence is not disproportionate in light of his recidivism. See Ewing v. California, 538 U.S. 11, 29-30 (2003) (plurality opinion) (sentence of twenty-five years to life for recidivist did not violate the Eighth Amendment).

*

6

Significant the

procedural range,

errors

include the

improper Guidelines

calculation as

of

Guidelines

treating

mandatory,

failing to consider the 18 U.S.C.A. § 3553(a) (West 2006 & Supp. 2008) factors, or failing to adequately explain the given

sentence.

Id. at 473.

Substantive reasonableness entails a

review of the totality of the circumstances, and we may presume that a sentence within the advisory Guidelines range is

reasonable. 2459 (2007).

Id.; see Rita v. United States, 127 S. Ct. 2456,

Here, the district court followed the necessary steps in sentencing Woods. The court properly calculated the

Guidelines range and heard from Woods and his counsel regarding that range and the § 3553(a) factors. Further, the context

surrounding the district court's sentence makes clear that it considered the applicable § 3553(a) factors and concluded that the Guidelines range provided an appropriate basis for

determination of sentence.

See United States v. Montes-Pineda,

445 F.3d 375, 380 (4th Cir. 2006) (holding that a court need not "robotically tick through" every subsection of § 3553(a)), cert. denied, 127 S. Ct. 3044 (2007). In addition, we find no abuse

of discretion in the court's decision to sentence Woods at the low end of the Guidelines range for career offenders, especially given Woods' lengthy criminal history.

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Accordingly, we affirm the district court's judgment. We dispense with oral argument because the facts and legal

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

AFFIRMED

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