US v. Roland Cooper

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:12-cr-00110-H-1 Copies to all parties and the district court/agency. [999610768].. [14-4481]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4481

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROLAND SYLVESTER COOPER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.
Malcolm J. Howard,
Senior District Judge. (4:12-cr-00110-H-1)

Submitted:

June 25, 2015

Decided:

June 29, 2015

Before GREGORY, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Roland Sylvester Cooper appeals from his conviction and 108month

sentence

distribution

for

of

a

distribution
quantity

of

of

a

cocaine

quantity
and

of

cocaine

marijuana,
base,

and

knowingly selling a firearm to a convicted felon.

Cooper argues

that

a

his

due

prosecution

process

and

rights

that

his

substantively unreasonable.

were

violated

sentence

is

by

vindictive

procedurally

and

Finding no error, we affirm.

First, Cooper contends that he was subject to vindictive
prosecution, in violation of the Fifth Amendment.

As grounds for

this claim, Cooper contends that the local sheriff’s department
targeted

him

for

a

federal

prosecution

in

retaliation

for

a

complaint he filed against a local police officer related to
injuries he sustained when an officer used a taser on him.

Cooper

did not assert this claim in the district court, therefore it is
reviewed for plain error.
725, 732 (1999).

See United States v. Olano, 507 U.S.

To establish prosecutorial vindictiveness, a

defendant must show that the prosecutor acted with genuine animus
toward

the

defendant,

and

the

prosecuted but for that animus.
305, 314 (4th Cir. 2001).

defendant

would

not

have

been

United States v. Wilson, 262 F.3d

If a defendant cannot produce direct

evidence of a vindictive motive, he can establish a rebuttable
presumption

of

vindictiveness

by

showing

that

a

“reasonable

likelihood of vindictiveness exists.” United States v. Goodwin,
2

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457 U.S. 368, 373 (1982).

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If he succeeds, the burden then shifts

to the Government to present objective evidence justifying its
conduct.

Id. at 374.

The evidence is viewed, however, in the

context of the “presumption of regularity” that attends decisions
to prosecute. United States v. Armstrong, 517 U.S. 456, 464 (1996)
(citation omitted).

Thus, “in the ordinary case, so long as the

prosecutor has probable cause to believe that the accused committed
an offense defined by statute, the decision whether or not to
prosecute, and what charge to file . . . generally rests entirely
in his discretion.”

Id. (internal quotations omitted).

We note at the outset that most successful vindictive prosecution
claims involve retaliatory prosecutions by the same sovereign that
earlier brought the defendant to trial.
U.S. at 381.

See, e.g., Goodwin, 457

Here, however, the alleged vindictive prosecution

was brought by a different sovereign altogether. See United States
v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981) (expressing “doubt
as to whether a prosecution could be condemned as ‘vindictive’
when the defendant’s claim is that one sovereign is punishing him
for rights he asserted against a different sovereign”).
Even if we were to assume there was some evidence of animus
on the part of local law enforcement in referring Cooper for
federal prosecution, there is no evidence to suggest that the
Government official who actually made the decision to prosecute
Cooper was motivated by any impermissible consideration.
3

And we

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will not “impute the unlawful biases of the investigating agents
to the persons ultimately responsible for the prosecution.” United
States v. Hastings, 126 F.3d 310, 314 (4th Cir. 1997).
Finally, objective evidence in the record clearly supports
the Government’s decision to prosecute Cooper in federal court.
Given the facts adduced at trial, the Government had probable cause
to believe that Cooper committed the charged offenses.
517 U.S. at 464.

Armstrong,

Accordingly, Cooper’s vindictive prosecution

claim fails.
Next, Cooper raises sentencing challenges.
the

district

quantity,

court

applying

procedurally
a

firearm

erred

in

enhancement,

adequately explain its sentence.

He argues that

determining
and

in

drug

failing

to

Cooper also asserts that the

sentence is substantively unreasonable because it is greater than
necessary to comply with the purposes of sentencing.
sentence

for

standard.

reasonableness,

applying

an

abuse

of

We review a
discretion

Gall v. United States, 552 U.S. 38, 46 (2007).

The

court first reviews for significant procedural error, and if the
sentence is free from such error, it then considers substantive
reasonableness.
calculating

Id. at 51.

the

Sentencing

Procedural error includes improperly
Guidelines

range,

treating

the

Guidelines range as mandatory, failing to consider the 18 U.S.C.
§ 3553(a) (2012) factors, and failing to adequately explain the
selected sentence.

Id.

To adequately explain the sentence, the
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court

must

make

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an

“individualized

assessment”

by

applying the relevant § 3553(a) factors to the case’s specific
circumstances.
Cir. 2009).

United States v. Carter, 564 F.3d 325, 328 (4th

The individualized assessment need not be elaborate

or lengthy, but it must be adequate to allow meaningful appellate
review.

Id. at 330.

Substantive reasonableness is determined by

considering the totality of the circumstances, and if the sentence
is within the properly-calculated Guidelines range, this court
applies

a

presumption

of

reasonableness.

United

States

v.

Strieper, 666 F.3d 288, 295 (4th Cir. 2012).
The Government must prove the drug quantity attributable to
the defendant by a preponderance of the evidence.
v. Carter, 300 F.3d 415, 425 (4th Cir. 2002).
may

rely

on

drug-related

facts

included

United States

The district court
in

the

presentence

investigation report unless the defendant shows that information
is inaccurate or unreliable.

Id.

A district court’s findings

regarding drug quantity are generally factual in nature, and
therefore are reviewed by this court for clear error.

Id.

The district court properly found by a preponderance of the
evidence that Cooper was responsible for the equivalent of 692
grams of marijuana.
is

supported

investigation

by

Carter, 300 F.3d at 425.
information

report,

contained

testimony

from

The court’s finding
in

the

investigating

presentence
agents

and

cooperating witnesses, and by the physical evidence obtained in
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controlled buys.

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We therefore conclude that the district court

did not clearly err in calculating Cooper’s drug quantity.
We next consider Cooper’s challenge to the application of a
two-level

sentencing

enhancement

for

possessing

a

dangerous

weapon. Section 2D1.1(b)(1) of the Sentencing Guidelines provides
for a two-level enhancement where a dangerous weapon, such as a
firearm, was possessed.

The district court decides whether to

apply the enhancement by a preponderance of the evidence, and its
findings ordinarily will be reversed only if clearly erroneous.
United States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990).

We

conclude that the district court properly applied the firearm
enhancement.

Ample evidence supported the enhancement, including

evidence that Cooper conducted some of the drug transactions from
his home where firearms were kept, that a firearm was found at his
home, and that Cooper sold the cooperating witness a firearm in
the course of a drug transaction.
Cooper also argues that the district court did not give
sufficient reasoning why it did not grant his request for a low-end
Guidelines sentence. Here, the district court listened to Cooper’s
argument for a reduction based on Cooper’s age, mental competence,
and that he was low-level dealer.

In imposing the sentence, the

court stated that it was sentencing Cooper at the lower end of the
Guidelines range in light of the significant penalties associated
with the range and, in fact, granted a downward variance based on
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proposed changes to the drug table, and noted Cooper’s personal
and criminal history.

The court explicitly stated that it had

considered the Sentencing Reform Act of 1984.

We conclude that

the court sufficiently considered Cooper’s request for a low-end
sentence and its reasoning was adequate to permit meaningful
review.

See United States v. Worley, 685 F.3d 404, 410 (4th Cir.

2012) (explaining that while the district court did not explicitly
address most of the defendant’s arguments about postsentencing
rehabilitation, the court has “never required a sentencing court
to

discuss

each

§

(citation omitted)).

3553(a)

factor

in

a

‘checklist

fashion’”

Therefore, we find no procedural error.

Further, Cooper has not rebutted the presumption of reasonableness
attributed to within-Guidelines sentences.
at 295.

See Strieper, 666 F.3d

Accordingly, we affirm the sentence.

We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.

AFFIRMED

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