US v. Antonio Owens

Filing 920090406

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4766 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANTONIO OWENS, a/k/a Tonio, Defendant Appellant, and RANDY MARTIN; LUTHER BRYAN; ALISIA H. AKBAR; LACARIA BROWN; GEORGEAN MCCONNELL; GUSSIE D. NOLLKAMPER; FLORENCE NOLLKAMPER; CHRISTOPHER M. MORRIS; LAVACA COUNTY TEXAS; JOSEPH E. MCCONNELL; JOHN M. WARTHER; WELLS FARGO HOME MORTGAGE, INCORPORATED; CHERYL L. AMAKER; DONNA C. ADKINS; CHASE MANHATTAN MORTGAGE CORPORATION, Parties-in-Interest. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:02-cr-00548-CMC-26) Submitted: March 19, 2009 Decided: April 6, 2009 Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John Preston BAILEY, Chief United States District Judge for the Northern District of West Virginia, sitting by designation. Affirmed by unpublished per curiam opinion. Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. W. Walter Wilkins, United States Attorney, Jane B. Taylor, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Antonio Owens was convicted by a jury of conspiracy to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1) (2006), and was sentenced to life in prison. challenging his conviction and sentence. Owens appealed, We affirmed Owens' conviction and rejected claims relating to Owens' sentence, but because he was sentenced and under remanded the then-mandatory resentencing Sentencing consistent See United Guidelines, vacated for with United States v. Booker, 543 U.S. 220 (2005). States v. Davis, 270 F. App'x 236 (4th Cir. March 17, 2008) (unpublished). On remand, the district court imposed a 300-month variant sentence on Owens and he timely appealed. that while the district him, the court correctly Owens claims a variant was imposed sentence upon district court's variance insufficient because: (i) Owens had a disadvantaged childhood; (ii) his Guidelines range was based overwhelmingly on drug weight, thereby making the range unreasonably high; and (iii) there are too many incarcerated people in the United States and a 300-month sentence "would be a waste for [Owens] and society at large." We imposed on affirm remand. the After district Booker, 3 court's we variant a sentence for review sentence reasonableness, using an abuse of discretion standard of review. Gall v. United States, 128 S. Ct. 586, 597 (2007); see United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008) ("[A] sentence that deviates from the Guidelines is reviewed under the same deferential abuse-of-discretion standard as a sentence The court imposed within the applicable guidelines range."). must give due deference to the district court's decision that the 18 U.S.C. 3553(a) (2006) factors justify the sentence. United States v. Evans, 526 F.3d 155, 162 (4th Cir. 2008). Even if this court would have imposed a different sentence, this fact alone will not justify vacatur of the district court's sentence. Id. At Owens' resentencing, the district court heard counsel's argument regarding the weight that should be afforded the 3553(a) factors, afforded Owens an opportunity to allocute, and thoroughly considered the 3553(a) factors before imposing Owens' sentence. adequately explained its We conclude that the district court rationale for imposing the variant sentence, that the sentence was selected pursuant to a reasoned process in accordance with law, and that the reasons relied upon by the district court are plausible and justify the sentence imposed. Abu Ali, 528 F.3d at 260-61; United States v. Pauley, 511 F.3d 468, 473-76 (4th Cir. 2007). 4 Because remand to be we find Owens' we variant affirm sentence imposed on reasonable, the district court's judgment. legal before We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional contentions the court would process. AFFIRMED 5

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