US v. David Howard

Filing

UNPUBLISHED PER CURIAM OPINION filed.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]

US v. David Howard

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4925 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID L. HOWARD, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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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

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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

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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).

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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