US v. Jevan Anderson

Filing 920090812

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4539

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEVAN ANDERSON, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (4:97-cr-00034-FL-1)

Submitted:

July 31, 2009

Decided:

August 12, 2009

Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Mary J. Darrow, Raleigh, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: This case is before us for a fifth time on Jevan

Anderson's appeal from resentencing following a fourth remand from this court. Anderson was convicted in 1999 for conspiracy

to distribute and to possess with intent to distribute crack cocaine, in violation of 21 U.S.C. § 846 (2006). Between

Anderson's initial sentence and now, the Supreme Court handed down its landmark decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005), and the United States Sentencing Commission amended the federal sentencing guidelines for crack cocaine offenses, all of which have impacted Anderson's sentence. Most recently, we found that the district court had

properly calculated Anderson's guidelines range to be 262 to 327 months' imprisonment based upon offense level thirty-six and

criminal history category IV. downward variance sentence

However, we vacated the 144-month imposed by the district court,

finding the sentence to be both procedurally and substantively unreasonable. United States v. Anderson, 241 F. App'x 941 (4th

Cir. 2007) (Nos. 06-4725, 06-4849). Upon remand, the district court rejected Anderson's

request for a downward variance sentence.

However, because of

the retroactive amendments to the federal sentencing guidelines pertaining to crack cocaine offenses, 2 which were promulgated

after our most recent remand, 1 the court found that Anderson was eligible for a two-level reduction in offense level, resulting in a guidelines sought range a of 210 to 262 months' sentence imprisonment. 2 based on the

Anderson

downward

variance

disparity between his sentence and those of his co-defendants, new evidence he asserted established that his conviction and the drug quantities his attributed advanced to him and were his based family upon perjured

testimony,

age,

circumstances.

Although the court declined to impose a variance sentence, the court sentenced him to 210 months in prison, a sentence at the bottom of the amended guidelines range, "because of the

circumstances presented here." Anderson pursuant to timely v. appealed. California, Counsel 386 filed 738 a brief (1967),

Anders

U.S.

identifying no meritorious grounds for appeal, but questioning whether the district court's failure to reimpose the previous 144-month decisis variance and sentence violated the doctrine was of stare

whether

Anderson's

sentence

reasonable.

See U.S. Sentencing Guidelines Manual § 2D1.1 (2007 & Supp. 2008); USSG App. C., Amends. 706, 711, 715; USSG § 1B1.10(c), p.s. (2008). The court applied the amended guidelines through an order granting its sua sponte motion for sentence reduction pursuant to 18 U.S.C. § 3582(c) (2006).
2

1

3

Anderson filed a pro se supplemental brief asserting additional challenges to his sentence. We turn first to Anderson's claim that the district court violated the the doctrine of stare decisis by failing doctrine to of

reimpose

earlier

144-month

sentence.

This

precedent requires a court to follow earlier judicial rulings when the same issues arise again. Here, the doctrine is

inapposite because we vacated the judgment imposing the 144month sentence, finding the downward variance sentence to be both procedurally and substantively unreasonable. Defense counsel also questions whether Anderson's We review

sentence was reasonable under Booker and its progeny.

a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, __, 128 S. Ct.

586, 597 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). for "significant (or In so doing, we first examine the sentence error," including: the "failing to

procedural

calculate

improperly

calculating)

[g]uidelines

range,

treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence . . . ."

Gall, 128 S. Ct. at 597.

We "then consider the substantive reasonableness of the sentence imposed." Id. If the sentence is within the guidelines range, 4

we

apply

a

presumption U.S. 338,

of __,

reasonableness. 127 S. Ct. 2456,

Rita

v.

United (2007)

States,

551

2462-69

(upholding presumption of reasonableness for within-guidelines sentence). In evaluating the sentencing court's explanation of a selected sentence, we have consistently held that, while a

district court must consider the statutory factors and explain its sentence, it need not explicitly reference § 3553(a) or

discuss every factor on the record, particularly when the court imposes range. 2006). a sentence within a properly calculated guidelines

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. At the same time, the district court "must make an Gall,

individualized assessment based on the facts presented." 128 S. Ct. at 597. individualized

Moreover, the district court must state the that justify a sentence, even when

reasons

sentencing a defendant within the guidelines range. S. Ct. at 2468.

Rita, 127

While the individualized assessment of each

defendant need not be elaborate or lengthy, it must provide a rationale tailored to the particular case at hand and be

adequate to permit appellate review. 564 F.3d 325, 330 (4th Cir. 2009).

United States v. Carter, The reasons articulated by

the district court for a given sentence need not be "couched in the precise language of § 3553(a)," so long as the "reasons can be matched to a factor appropriate for consideration . . . and 5

[are] clearly tied [to the defendant's] particular situation." United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). addition, where the parties present nonfrivolous reasons In for

imposing a sentence outside the advisory guidelines range, the district court should address the party's arguments and explain why they were rejected. reviewed the record with to Rita, 127 S. Ct. at 2468. these be standards in and mind We have and find

Anderson's reasonable. To

sentence

procedurally

substantively

the

extent

that

counsel

argues

that

Anderson's

sentence fails to adequately reflect the crack cocaine/powder cocaine sentencing disparity, her argument is meritless. crack cocaine guidelines amendments address the The

disparity

between sentences for crack offenses and powder cocaine offenses and, as discussed above, we find that the district court

properly applied the amendments to reduce Anderson's guidelines range and, ultimately, his sentence. In accordance with Anders, we have reviewed the record for any we meritorious affirm that the issues for appeal court's her and have found This none. 3 court of his

Thus,

district inform

judgment. in

requires

counsel

client,

writing,

We have reviewed the claims in Anderson's pro supplemental brief and conclude that they are without merit.

3

se

6

right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

7