US v. Jevan Anderson, No. 08-4539 (4th Cir. 2009)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4539 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEVAN ANDERSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (4:97-cr-00034-FL-1) Submitted: July 31, 2009 Decided: August 12, 2009 Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Mary J. Darrow, Raleigh, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: This case is before us for a fifth time on Jevan Anderson s appeal from resentencing following a fourth remand from this court. Anderson was convicted in 1999 for conspiracy to distribute and to possess with intent to distribute crack cocaine, in violation of 21 U.S.C. § 846 (2006). Between Anderson s initial sentence and now, the Supreme Court handed down its landmark decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005), and the United States Sentencing Commission amended the federal sentencing guidelines for crack cocaine offenses, all of which have impacted Anderson s sentence. Most recently, we found that the district court had properly calculated Anderson s guidelines range to be 262 to 327 months imprisonment based upon criminal history category IV. downward variance sentence offense level thirty-six and However, we vacated the 144-month imposed by the district court, finding the sentence to be both procedurally and substantively unreasonable. United States v. Anderson, 241 F. App x 941 (4th Cir. 2007) (Nos. 06-4725, 06-4849). Upon remand, the district court request for a downward variance sentence. rejected Anderson s However, because of the retroactive amendments to the federal sentencing guidelines pertaining to crack cocaine offenses, 2 which were promulgated after our most recent remand, 1 the court found that Anderson was eligible for a two-level reduction in offense level, resulting in a guidelines Anderson range sought a of 210 downward to 262 imprisonment. 2 months variance sentence based on the disparity between his sentence and those of his co-defendants, new evidence he asserted established that his conviction and the drug quantities testimony, his attributed advanced to age, him were and his based upon family perjured circumstances. Although the court declined to impose a variance sentence, the court sentenced him to 210 months in prison, a sentence at the bottom of the amended guidelines range, because of the circumstances presented here. Anderson pursuant to timely Anders v. appealed. Counsel California, 386 filed U.S. a 738 brief (1967), identifying no meritorious grounds for appeal, but questioning whether the district court s failure to reimpose the previous 144-month decisis variance and sentence whether violated Anderson s the sentence doctrine was of stare reasonable. 1 See U.S. Sentencing Guidelines Manual § 2D1.1 (2007 & Supp. 2008); USSG App. C., Amends. 706, 711, 715; USSG § 1B1.10(c), p.s. (2008). 2 The court applied the amended guidelines through an order granting its sua sponte motion for sentence reduction pursuant to 18 U.S.C. § 3582(c) (2006). 3 Anderson filed a pro se supplemental brief asserting additional challenges to his sentence. We turn first to Anderson s claim that the district court violated reimpose the the doctrine earlier of 144-month stare decisis sentence. by failing doctrine of This to precedent requires a court to follow earlier judicial rulings when the same issues arise again. Here, the doctrine is inapposite because we vacated the judgment imposing the 144month sentence, finding the downward variance sentence to be both procedurally and substantively unreasonable. Defense counsel also questions whether Anderson s sentence was reasonable under Booker and its progeny. We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, __, 128 S. Ct. 586, 597 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). for significant calculate (or In so doing, we first examine the sentence procedural improperly error, including: calculating) the failing [g]uidelines to range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, explain the chosen sentence . . . . or failing to adequately Gall, 128 S. Ct. at 597. We then consider the substantive reasonableness of the sentence imposed. Id. If the sentence is within the guidelines range, 4 we apply States, a 551 presumption U.S. 338, of __, reasonableness. 127 S. Ct. Rita 2456, v. United 2462-69 (2007) (upholding presumption of reasonableness for within-guidelines sentence). In evaluating the sentencing court s explanation of a selected sentence, we have consistently held that, while a district court must consider the statutory factors and explain its sentence, it need not explicitly reference § 3553(a) or discuss every factor on the record, particularly when the court imposes a sentence within a properly calculated guidelines range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). At the same time, the district court must make an individualized assessment based on the facts presented. 128 S. Ct. at 597. individualized Moreover, the district court must state the reasons that justify a sentence, sentencing a defendant within the guidelines range. S. Ct. at 2468. Gall, even when Rita, 127 While the individualized assessment of each defendant need not be elaborate or lengthy, it must provide a rationale tailored to the particular adequate to permit appellate review. 564 F.3d 325, 330 (4th Cir. 2009). case at hand and be United States v. Carter, The reasons articulated by the district court for a given sentence need not be couched in the precise language of § 3553(a), so long as the reasons can be matched to a factor appropriate for consideration . . . and 5 [are] clearly tied [to the defendant s] particular situation. United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). addition, where the parties present nonfrivolous reasons In for imposing a sentence outside the advisory guidelines range, the district court should address the party s arguments and explain Rita, 127 S. Ct. at 2468. why they were rejected. reviewed the Anderson s record with sentence to these be standards in procedurally mind and We have and find substantively reasonable. To the extent that counsel argues that Anderson s sentence fails to adequately reflect the crack cocaine/powder cocaine sentencing disparity, her argument is meritless. crack cocaine guidelines amendments address the The disparity between sentences for crack offenses and powder cocaine offenses and, as discussed above, we find that the district court properly applied the amendments to reduce Anderson s guidelines range and, ultimately, his sentence. In accordance with Anders, we have reviewed the record for any Thus, we requires meritorious affirm that issues the counsel for district inform appeal court s her and have judgment. writing, court his We have reviewed the claims in Anderson s pro supplemental brief and conclude that they are without merit. se 6 in This none. 3 of 3 client, found right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.