US v. David Howard


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:04-cr-00271-RJC-2 Copies to all parties and the district court/agency. [998476710] [09-4925]

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US v. David Howard Doc. 0 Case: 09-4925 Document: 38 Date Filed: 12/02/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4925 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID L. HOWARD, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:04-cr-00271-RJC-2) Submitted: November 4, 2010 Decided: December 2, 2010 Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Executive Director, Ann L. Hester, Peter S. Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-4925 Document: 38 Date Filed: 12/02/2010 Page: 2 PER CURIAM: David L. Howard appeals his conviction and life sentence for one count of conspiracy to commit offenses against the United States in violation of 18 U.S.C. 371 (2006), ten counts of interstate wire transfer of funds in aid of racketeering enterprises in violation of 18 U.S.C. 1952(a), 2 (2006), one count of conspiracy to commit money laundering in violation of 18 U.S.C. 1956(h) (2006), one count of conspiracy to possess with intent to distribute cocaine base and using a person under eighteen years of age in furtherance thereof in violation of 21 U.S.C. 846, 841, 861 (2006), and two counts of possession with intent to distribute cocaine base and aiding and abetting the same in violation of 21 U.S.C. 841, 18 U.S.C. 2. We affirm. Howard was convicted of the offenses in 2006. Upon consideration of the issues raised in his initial appeal, we affirmed concluding his convictions the but vacated court his sentence after an that district improperly imposed enhancement to his offense level for being a leader of the money laundering again conspiracy. a life (1) At resentencing, Howard a the now district argues court the imposed court sentence. in that district based on erred imposing and (2) sentence a enhancement acquitted conduct imposed substantively unreasonable sentence. We do not agree with either contention. 2 Case: 09-4925 Document: 38 Date Filed: 12/02/2010 Page: 3 An appellate court reviews a sentence for reasonableness under an abuse-of-discretion standard. United States, 552 U.S. 38, 51 (2007). consideration of both the Id. Gall v. This review requires and substantive procedural reasonableness of a sentence. First, the court must assess whether the district court properly calculated the guidelines range, analyzed considered any the 18 U.S.C. presented 3553(a) by the (2006) factors, and arguments parties, 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 United (same). States explanation v. Carter, must 564 accompany F.3d 325, every 330 sentence."); (4th Cir. 2009) An extensive explanation is not required as long as the appellate court is satisfied "`that [the district court] has considered the parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.'" States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) United (quoting Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied, ___U.S.___, 2010 WL 23245029 (October 4, 2010). I. Howard was Firearms Enhancement indicted for use of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. 924(c), 2 (2006) and one count of possession of a 3 Case: 09-4925 Document: 38 Date Filed: 12/02/2010 Page: 4 firearm by a felon in violation of 18 U.S.C. 922(g)(1) (2006). The jury acquitted him of both counts, but at sentencing, his offense level was enhanced two levels pursuant to U.S. Sentencing Guidelines Manual 2D1.1(b)(1) (2009). he argues that his Sixth Amendment rights were On appeal, violated by enhancing his sentence based on facts that were not found beyond a reasonable doubt by a jury. have previously considered The merits of his claim aside, we rejected this argument. See and United States v. Perry, 560 F.3d 654 (4th Cir.), cert. denied, 130 S. Ct. 177 (2009). A panel of this court cannot overrule United States v. Simms, 441 F.3d the decision of a prior panel. 313, 318 (4th Cir. 2006). II. Substantive Reasonableness Howard next claims that the district court erred in failing to award a variance in light of the disparity between powder cocaine and "crack" cocaine sentences. Even if the sentence is procedurally reasonable, the court must consider the substantive reasonableness of the sentence, "examin[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in 3553(a)." United States v. Mendoza-Mendoza, 597 F.3d 212, 216 Moreover, this court applies a presumption of 4 (4th Cir. 2010). Case: 09-4925 Document: 38 Date Filed: 12/02/2010 Page: 5 reasonableness to within-guidelines sentences. See, e.g., United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). We have reviewed the record and we conclude that the district court was aware that it could impose a variance, but conscientiously declined to do so. variance was required in light of Howard argues that such a the crack/powder cocaine sentencing disparity, but we do not agree. We conclude that Howard has failed to rebut the presumption of reasonableness accorded to his within-guidelines sentence. We court. legal before therefore affirm the judgment of the district We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 5

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