US v. Dominique Sanders

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00007-LHT-1 Copies to all parties and the district court/agency. [998408050] [09-4822]

US v. Dominique Sanders

Doc. 0

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4822 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. DOMINIQUE TRACY SANDERS, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00007-LHT-1) Submitted: July 15, 2010 Decided: August 20, 2010

Before TRAXLER, Chief Judge, and WILKINSON and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Executive Director, Matthew R. Segal, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Dominique Tracy Sanders pled guilty pursuant to a plea agreement to one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006), and one count of of § possession a drug and use of a firearm in was during the of to

commission 18 U.S.C. sixty-three months for

trafficking (2006). his

crime, Sanders

violation sentenced and

924(c)(1) months his for

narcotics

conviction, latter

sixty to run On

weapons

conviction,

the

term

consecutive to the former term for a total of 123 months.

appeal, this court affirmed Sanders' convictions and sentence on the weapons conviction, but vacated Sanders' sentence on the narcotics conviction, in accordance with United States v.

Carter, 564 F.3d 325 (4th Cir. 2009), because the district court failed to provide an explanation for Sanders' sixty-three-month sentence. On remand, sentence the on district Sanders' court re-imposed the

sixty-three-month

narcotics

conviction.

Sanders again appeals, arguing that the district court's failure to explicitly respond cocaine to his argument disparity regarding amounts the to

crack-to-powder reversible error.

sentencing

We affirm the district court's judgment.

This court reviews a sentence for reasonableness under an abuse-of-discretion standard. Gall v. United States,

552 U.S. 38, 51 (2007).

This review requires consideration of 2

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both

the

procedural Id.

and

substantive

reasonableness

of

a

sentence. properly

The court must assess whether the district court the advisory guidelines range, considered

calculated

the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence.

Id. at 49-50; see

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ("[A]n individualized explanation must accompany every sentence.")

(emphasis in original); Carter, 564 F.3d at 330 (holding that the "individualized assessment . . . must provide a rationale tailored to the particular case at hand and [be] adequate to permit meaningful appellate review") (internal quotation marks and citation omitted). "Although a court need not necessarily

issue a comprehensive, detailed opinion, the court's explanation must nonetheless be sufficient `to satisfy the appellate court that [the district court] has considered the parties' arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.'"

United States v. Boulware, 604 F.3d

832, 837 (4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). The elaborate or district lengthy[,]" court's however. explanation Carter, "need 564 F.3d not at be 330.

"That is especially true where, as here, the sentence is inside the advisory guidelines range." 3 United States v. Johnson,

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587 F.3d 625, 639 (4th Cir. 2009), cert. denied sub nom. Martin v. United States, 130 S. Ct. 2128 (2010). "Gall was quite

explicit that district courts should provide more significant justifications for major departures than for minor ones. But

when a district court does not depart or vary at all, it may provide a less Id. extensive, (internal "This many ways while still individualized, marks and

explanation." brackets themselves

citations, is because to

quotation guidelines the

omitted). are in

sentences and

tailored

individual

reflect approximately two decades of close attention to federal sentencing policy." omitted). If there is no procedural error, this court may then review the substantive reasonableness of the sentence, "tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range." United Id. (internal quotation marks and citation

States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation sentence marks within and a citation properly omitted). calculated We presume that a is

Guidelines

range

reasonable. 2007). We

United States v. Allen, 491 F.3d 178, 193 (4th Cir.

have

determined

that

Sanders

preserved

his

challenge to the imposition of the district court's sentence by arguing for a sentence different than the one imposed by the 4

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district court.

Lynn, 592 F.3d at 578 ("By drawing arguments

from § 3553 for a sentence different than the one ultimately imposed, court of an aggrieved its party sufficiently to render alerts an the district

responsibility

individualized

explanation addressing those arguments, and thus preserves its claim."). Accordingly, we review the district court's sentence Id. at 581, 583-84. and, thus, abused If its Id.

on remand for an abuse of discretion. the district court procedurally erred

discretion, we must reverse unless the error is harmless. at 581, 585. We Sanders' hold that the district sentence court's was reasoning

for

sixty-three-month

sufficiently Although it was

individualized and reflected a considered rationale. the district court did not explicitly state that

rejecting Sanders' policy-based disparity argument, the district court did make clear why it believed a sixty-three-month

sentence on Sanders' narcotics conviction was appropriate under the § 3553(a) factors. analysis of the We conclude that the district court's factors allows us to conduct

§ 3553(a)

"meaningful appellate review" and promote[s] the perception of fair sentencing." Simmons, 587 F.3d Gall, 552 U.S. at 50; see United States v. 348, that 362 the (6th Cir. 2009) (rejecting failure to

defendant's

argument

district

court's

explicitly reject his disparity argument amounted to reversible 5

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error

because

the

argument for

was

legal of

rather crack

than have

factual, routinely

"defendants

convicted

possession

made the same underlying substantive claim, and therefore the sentencing judge was no doubt familiar with this line of

reasoning[,]" the district court recognized its discretion in rendering an appropriate sentence, but "conclud[ed] with respect to this individual defendant that sentencing disparities were less likely to result from a sentence within the Guidelines

range"), cert. denied, 130 S. Ct. 2116 (2010).

Cf. Lynn, 592

F.3d at 584-85 (finding procedural sentencing error where there was no indication that the district court "considered the

defendant's nonfrivolous [and personalized] arguments prior to sentencing him" and stated only that it found Lynn's sentence to be "'fair and appropriate and . . . consistent with the

requirements of [§ 3553(a)]'" before imposing Lynn's sentence); United States v. Sevilla, 541 F.3d 226, 232 (3rd Cir. 2008) (recognizing that "a rote statement of the § 3553(a) factors" will not suffice to support a defendant's sentence if the

defendant raises a "ground of recognized legal merit (provided it has a factual basis) and the court fails to address it") (internal quotation marks and citation omitted). Because Sanders has not rebutted the presumption of reasonableness that this court applies to his within-Guidelines range sentence, see Allen, 491 6 F.3d at 193, we affirm the

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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

On July 16, 2010, the Seventh Circuit published its opinion in United States v. Arberry, __ F.3d __, 2010 WL 2788548 (7th Cir. July 16, 2010), holding that the district court's failure to address the defendant's nonfrivolous argument regarding application of a one-to-one sentencing ratio for crack and powder cocaine required vacatur of the defendant's sentence. In a footnote, the Seventh Circuit stated its opinion was consistent with a ruling from this Court in United States v. Clark, No. 09-4256, 2010 WL 2464979 (4th Cir. June 17, 2010). However, Clark was remanded for resentencing because the district court failed "to explain its individualized assessment of the applicable [18 U.S.C. § 3553(a) (West 2000 & Supp. 2009)] factors," "to articulate why it rejected Clark's argument for a below guidelines sentence," or "address Clark's sentencing Ultimately, this Court disparity argument." Clark, at *2. remanded Clark for resentencing because it was "simply unable to gauge whether the district court considered the parties' arguments and the applicable sentencing factors and had a reasoned basis for its decision." Id. Here, the district court on remand did explain its individualized assessment of the applicable § 3553(a) factors and provided a reasoned basis of its decision to sentence Sanders within the Guidelines range. Indeed, the district court recognized its discretion in rendering an appropriate sentence and found that among defendants with similar records, who were found guilty of similar conduct, the sentence did not result in unwarranted sentence disparity. Accordingly, despite the district court's failure to expressly address the defendant's disparity argument, we are not persuaded by the Seventh Circuit's decision in Arberry to reach a different outcome. 7

*