US v. Darren White

Filing 920090406

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4767 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DARREN WHITE, a/k/a Doctor, a/k/a Coolie, 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-13) Submitted: March 18, 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 Affirmed by unpublished per curiam opinion. Mary J. Darrow, Raleigh, North Carolina, 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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Darren White was convicted by a jury of conspiracy to distribute five kilograms or more of cocaine and fifty grams or more of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), 846 (2006), and was sentenced to life in prison. White appealed, challenging his conviction and sentence. White's conviction and rejected claims relating We affirmed to White's sentence, but because he was sentenced under the then-mandatory Sentencing Guidelines, vacated and remanded for resentencing consistent with United States v. Booker, 543 U.S. 220 (2005). See United States v. Davis, 270 F. App'x 236 (4th Cir. March 17, 2008) (unpublished). On remand, the district court sentenced White to 360 months in prison. White timely appealed. White now claims that the district court erred when it: (i) enhanced his Guidelines range by two levels based on possession of a dangerous weapon, in accordance with U.S. Sentencing Guidelines Manual ("USSG") 2D1.1(b)(1) (2002); (ii) increased his offense level by three levels based on his managerial role in the conspiracy, pursuant to USSG 3B1.1 (2002); and (iii) used the pre-amended cocaine base Guidelines to determine his Guidelines range because those Guidelines overstated his culpability. affirm. Finding no error, we 3 We find that White's challenges to his Guidelines range calculation are barred by the law-of-the-case doctrine and that none of the exceptions to that doctrine apply. See Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) ("[A] remand proceeding is not the occasion for raising new arguments or legal theories."); United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating that the mandate rule "forecloses relitigation of issues expressly or impliedly decided by the appellate court," as well as "issues decided by the district court but foregone on appeal."); see also United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (discussing law-of-the-case doctrine and the exceptions thereto). After Booker, a sentence is reviewed for reasonableness, using an abuse of discretion standard of review. Gall v. United States, 128 S. Ct. 586, 597 (2007). The first step in this review requires us to ensure that the district court committed no significant procedural error, such as improperly calculating the Guidelines range. Evans, 526 F.3d 155, 161 (4th Cir. 2008). United States v. Assuming the district court committed no significant procedural error, we then consider the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. presume that a sentence Id. at 161-62. the While we may range is within 4 Guidelines reasonable, we may not presume that a sentence outside the Guidelines range is unreasonable. Gall, 128 S. Ct. at 597; 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 imposed deferential within abuse-of-discretion applicable standard as a sentence the guidelines range."). Rather, in reviewing a sentence outside the Guidelines range, we "consider the extent of the deviation, but must give due deference to the district court's decision that the 3553(a) factors, on a whole, justify the extent of the variance." 128 S. Ct. at 597. Gall, Even if this court would have imposed a different sentence, this fact alone will not justify vacatur of the district court's sentence. Because reveals variant no our review or by Id. of the proceedings error, we on remand the procedural substantive the affirm At sentence the imposed district heard be court. White's argument resentencing, regarding factors, thoroughly White's the district that court should counsel's the weight afforded to 3553(a) and afforded White the We its an opportunity allocute, before considered 3553(a) conclude rationale factors the imposing court variant sentence. explained that for district the adequately imposing sentence, that the sentence was selected pursuant to a reasoned process in accordance with law, and that the reasons relied upon 5 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). Based on the foregoing, we affirm 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 6

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