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UNPUBLISHED PER CURIAM OPINION filed.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
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4925 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID L. HOWARD, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.
Dockets.Justia.com
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?