US v. Oliver Derwin Thomas, No. 07-4868 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4868 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OLIVER DERWIN THOMAS, Defendant - Appellant. No. 07-4989 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWIN LERON HAMMOND, a/k/a Edwin Leon Hammond, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Sr.; N. Carlton Tilley, Jr., Senior District Judges. (1:07-cr-00042WLO) Submitted: September 18, 2009 Decided: October 9, 2009 Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., WinstonSalem, North Carolina; Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellants. Anna Mills Wagoner, United States Attorney, David P. Folmar, Jr., Assistant United States Attorney, Clifford R. Lamar, II, Third Year Law Student, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Oliver guilty to Derwin distribution Thomas of and Edwin cocaine base, U.S.C. § 841(a)(1), (b)(1)(B) (2006). Leron in Hammond violation pled of 21 They now appeal their respective 280-month and 262-month sentences, arguing that the sentences are unreasonable. consolidated on appeal. The two cases have been Finding no error, we affirm. We review a sentence for reasonableness, applying an abuse of discretion standard. 38, Gall v. United States, 552 U.S. , 128 S. Ct. 586, 597 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). We conclude that Thomas procedurally and Hammond s substantively calculated advisory, sentences reasonable. The guidelines range, the and considered (2006) factors. (4th Cir. 2007). the are both district treated applicable court the 18 properly guidelines U.S.C. and as § 3553(a) See United States v. Pauley, 511 F.3d 468, 473 Moreover, the district courts sentences were based on their individualized assessment of the facts of the case. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Last, Thomas and Hammond s within-guidelines sentences are presumptively reasonable on appeal. United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). In rebutting the presumption of reasonableness, see United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) 3 (stating presumption unreasonable Thomas be rebutted when measured against his sentence is argues Supreme may Court s subsequent States, 552 U.S. 85, by showing the § 3553(a) unreasonable decision sentence in in factors), light Kimbrough is v. of the United , 128 S. Ct. 558 (2007), and Amendment 706 to the federal sentencing guidelines, which lowered the base offense level for crack offenses effective November 1, 2007. Thomas did not object to his presentence report based on the crack cocaine/powder retroactively offers disparity. Thomas no Applying relief. Amendment Because Thomas 706 was designated a career offender, his base offense level of thirtyseven was determined by the statutory maximum sentence of life imprisonment applicable to his offense under 21 U.S.C. § 841(b)(1)(A), not the drug quantity found attributable to him. See Thus, U.S. Sentencing although the Guidelines base Manual § 4B1.1(b)(A) (2006). level corresponding to offense the determined drug quantity would be lower as a result of Amendment 706, the amendment is ultimately of no consequence because calculation of Thomas offense level was driven by the career offender designation. See USSG § 2D1.1(c)(8). In Kimbrough, the Supreme Court held that it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary to achieve 4 § 3553(a) s purposes, even in a mine-run case. 575. 128 S. Ct. at Because Thomas did not argue below that he should be sentenced below the advisory guidelines range based upon the crack/powder cocaine disparity in the guidelines, review is for plain error. See United States v. Branch, 537 F.3d 328, 343 (4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009). the court s failure to consider the crack/powder Assuming disparity constitutes error that was plain, it must still be established that the error affected the defendant s substantial rights. id. See This court previously has concluded that the error of sentencing a defendant under a mandatory guidelines regime is neither presumptively prejudicial nor structural, requiring a showing of actual prejudice. White, 405 F.3d 208, 223 (4th Cir. 2005). on the defendant to establish that the thereby United States v. Thus, the burden is error affected district court s selection of the sentence imposed. the Id. Here, the record is entirely silent on this issue and the record does not reveal a nonspeculative basis for concluding that the district court would have imposed a shorter sentence had it known it possessed the discretion to do so. event, Kimbrough ultimate is guidelines of no range assistance was not to Thomas determined because based quantity but on his status as a career offender. In any on his drug See United States v. Ogman, 535 F.3d 108, 109 (2d Cir. 2008) (clarifying 5 that when a district court sentences a defendant pursuant to a Guidelines range offender, and that results without from reliance his upon status the as a career Guidelines drug quantity table and the crack powder ratio that it incorporates, the sentence does not present the type of error for which remand . . . is appropriate ); United States v. Jiminez, 512 F.3d 1, 89 (1st Cir. 2007) ( As we have explained, the crack/powder dichotomy is irrelevant to the career offender sentence actually imposed in this Kimbrough . . . case. is Consequently, of only the academic decision interest in here. ). Therefore, Thomas cannot demonstrate that the district court s failure to consider the crack/powder disparity affected his substantial rights. Thomas also argues his sentence is substantively unreasonable under § 3553(a) because his co-defendant, Hammond, received a shorter sentence by eighteen months. that, unlike offense. He Hammond, further he was merely argues that a He maintains facilitator the court in the should have considered his difficult childhood and disadvantaged life. Both Thomas and Hammond pled guilty to the same offense and both were sentenced as career offenders. The sentence differential can be easily understood given that Thomas and Hammond were sentenced by different judges and Hammond attempted to cooperate with the Government. Furthermore, the 6 court listened to defense counsel s argument discretion, the concerning district Thomas recidivism. Thomas court background considered and, more in its significant The district court therefore did not abuse its discretion in imposing the chosen sentence. On appeal, Hammond maintains his 262-month sentence is unreasonable because it is greater than necessary to accomplish the goals of § 3553(a) and that the court did not have the benefit of the Gall decision in fashioning his sentence. Hammond s case, calculated the guidelines district as court advisory, In treated the properly considered the relevant § 3553(a) factors, and heard argument from the parties as well as a statement from Hammond. The court clearly took into consideration Hammond s possible cooperation with the Government and his lengthy criminal history in determining that a sentence at the low end of the guidelines requested by Hammond, was appropriate. rebutted the reasonable. appellate presumption range, as specifically Hammond has simply not that his sentence is Accordingly, the district court did not abuse its discretion in imposing a 262-month sentence. We therefore affirm Thomas and Hammond s sentences. We further deny Thomas motion to proceed pro se/appoint new counsel. legal We dispense with oral argument because the facts and contentions are adequately 7 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 8

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