US v. Wesley Foote


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:06-cr-00177-NCT-1. Copies to all parties and the district court/agency. [998424149] [09-5146]

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US v. Wesley Foote Doc. 0 Case: 09-5146 Document: 21 Date Filed: 09/14/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5146 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WESLEY DEVON FOOTE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:06-cr-00177-NCT-1) Submitted: August 12, 2010 Decided: September 14, 2010 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, William C. Ingram, First Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Randall S. Galyon, Assistant United States Attorney, Julie Ann Daniel, Third-Year Law Student, Wake Forest University, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-5146 Document: 21 Date Filed: 09/14/2010 Page: 2 PER CURIAM: Wesley Devon Foote pled guilty to three counts of distributing cocaine base (crack) and was sentenced in 2006 to a term of 262 months imprisonment. We affirmed his sentence; however, the Supreme Court vacated the judgment and remanded his case for reconsideration in light of Kimbrough v. United States, 552 U.S. 85 (2007) (holding that sentencing court may consider crack/powder cocaine sentencing ratio as basis for variance). See United States v. Foote, 249 F. App'x 967 (4th Cir. 2007) (No. 07-4129), vacated, 552 U.S. 1163 (2008). On remand from the Supreme Court, we vacated Foote's sentence and remanded for resentencing "[t]o give the district court the opportunity to reconsider the sentence in light of Kimbrough[.]" United States v. Foote, 276 F. App'x 307 (4th Cir. 2008) (No. 07-4139). The district court again declined to vary below the guideline range and reimposed the same term of 262 months imprisonment. On erred in appeal, of Foote contends either that by the not district court its one two ways; recognizing "discretion to determine what the appropriate ratio should be between crack and powder cocaine," or by refusing to exercise its discretion. not adequately He also suggests that the district court did explain its reasons for not granting him a downward variance. We affirm. 2 Case: 09-5146 Document: 21 Date Filed: 09/14/2010 Page: 3 We review a sentence for reasonableness under an abuse of discretion standard. (2007). district Generally, court Gall v. United States, 552 U.S. 38, 51 requires us to the assess whether the this properly calculated guidelines range, considered the 18 U.S.C. 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. 592 F.3d 572, 576 Id. at 49-50; see United States v. Lynn, (4th Cir. 2010) ("[A]n individualized explanation must accompany every sentence."); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). We must also review the substantive reasonableness of the sentence, examining "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 (4th Cir. 2010). However, we remanded this case after Kimbrough was decided solely to afford the district court an opportunity to decide whether it wished to vary in light of Kimbrough. The district court's comments during the resentencing leave no doubt that it understood its discretion to vary below the guideline range based on the crack-to-powder cocaine ratio. The court decided not to vary and explained that it wished to leave to Congress the decision as to what the proper sentencing ratio should be. We are satisfied that the district court exercised 3 Case: 09-5146 Document: 21 Date Filed: 09/14/2010 Page: 4 its discretion, complied with its mandate on remand, and adequately explained its decision. We district facts therefore We affirm the with are and sentence oral imposed by the the the the court. legal before dispense argument because in aid and contentions the court adequately argument presented not materials would decisional process. AFFIRMED 4

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