US v. Jason Cummings, No. 08-5188 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5188 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JASON CUMMINGS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:08-cr-00226-HEH-1) Submitted: July 7, 2009 Before WILKINSON and Senior Circuit Judge. NIEMEYER, Decided: Circuit Judges, July 22, 2009 and HAMILTON, Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Nia Ayanna Vidal, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Peter S. Duffey, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jason Cummings appeals his 225-month possession with intent to distribute heroin. three issues district on appeal. court s use First, of Cummings his sentence for Cummings raises contends calculating his sentence violated due process. the statements post-arrest that in Next, Cummings argues that the district court erred in finding Cummings s postarrest statements corroborated and reliable. Finally, Cummings asserts that his 225-month sentence was unreasonable, as the district court failed to adequately consider Cummings s history and personal characteristics, or otherwise address the arguments Cummings s attorney made during sentencing. Finding no merit in these arguments, we affirm. We review a sentence , 128 S. Ct. 586, 597 (2007). consideration of both the reasonableness of a sentence. In determining reasonableness under an Gall v. United States, 552 U.S. abuse-of-discretion standard. 38, for This review requires our procedural and substantive 128 S. Ct. at 597. whether a sentence is procedurally reasonable, we first assess whether the district court properly calculated the defendant s advisory guideline range. Id. at 596-97. We then consider whether the district court failed to consider the 18 U.S.C. § 3553(a) factors and any arguments presented by the parties, selected a sentence based on clearly 2 erroneous facts, or failed to sufficiently explain the selected sentence. Gall, 128 S. Ct. at 597. When imposing sentence, the district court must make an individualized assessment based on the facts presented. . . . That is, the sentencing court must apply the relevant § 3553(a) factors to the specific circumstances of the case before it. Such individualized treatment is necessary to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 128 S. Ct. at 598). Finally, we review the substantive reasonableness of the sentence, taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range. (4th Cir. reviewing 2007) the United States v. Pauley, 511 F.3d 468, 473 (quoting district Gall, court s 128 S. Ct. application at of 597). the When sentencing guidelines, this Court reviews findings of fact for clear error and questions of law de novo. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). A sentence within the properly calculated guideline range may be afforded an appellate presumption of reasonableness. 3 Rita v. United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2459, 2462 (2007). Cummings first asserts that the district court violated his due process rights when it used his post-arrest statements about drug trafficking as relevant calculating the drug weight attributable to him. conduct in Specifically, though Cummings was arrested with approximately ninety grams of heroin, the district court found him responsible for eighteen kilograms. We no error by authorized expressly find the lower courts district to court. consider We have acquitted or uncharged conduct in establishing drug amounts in sentencing, as long as the quantities are established by a preponderance of the evidence. 2009). United States v. Perry, 560 F.3d 246, 258 (4th Cir. Accordingly, Cummings s due process argument fails. Cummings next argues that the district court erred in adopting the probation officer s calculation of the attributable drug weight, as the post-arrest statements were uncorroborated and lacking sufficient indicia of reliability. After twice being advised of his Miranda * We disagree. rights, Cummings admitted that he had distributed one and a half kilograms of heroin * per month in the year prior to his Miranda v. Arizona, 384 U.S. 436 (1966). 4 arrest. These statements were corroborated by the fact that Cummings was arrested while driving en route from New York to North Carolina, in a rental car leased neither in Cummings's name nor in the names of the other passengers. Cummings was arrested with ninety grams of heroin, which he informed police would be used in determining whether to expand his drug business to another region. Finally, the information Cummings gave regarding the procedures used corroborated to by transport the drugs testimony of for an his business agent of the was Drug Enforcement Administration, based on his general knowledge of drug distribution and his conversation with a law enforcement officer in hampers the relevant New York. ability information appropriate sentence. 444 (4th Cir. 2006). [T]he of exclusion sentencing about the of reliable evidence courts to consider all defendant in selecting an United States v. Nichols, 438 F.3d 437, Given the established reliability of Cummings s post-arrest statements, the district court did not err in using these statements to determine Cummings s appropriate offense level. Finally, Cummings argues that his 225-month sentence was procedurally and substantively unreasonable. Concerning procedural reasonableness, Cummings does not contend that the district court incorrectly calculated his advisory guideline range, with the exception of the district court s consideration 5 of Cummings s review of post-arrest the record statements, convinces us discussed that Our district the supra. court correctly calculated Cummings s advisory guidelines range at 188 to 235 months. Instead, Cummings asserts that the district court failed to adequately consider Cummings s history and personal characteristics. took into This argument lacks merit. account Cummings s history The district court and characteristics, as demonstrated by its classification of Cummings as a major drug trafficker who had been involved in distributing quantities of heroin for quite a period of time. major In light of Cummings s extensive involvement in the drug trade, the district court determined that a sentence toward the upper end of the guideline range was appropriate. The explanation offered by the district court was sufficient to demonstrate its individualized assessment of the circumstances sentence. of Cummings s case prior to pronouncing the Indeed, when a judge decides to simply apply the [g]uidelines to a particular case, doing so will not necessarily require lengthy explanation. Rita, 127 S. Ct. at 2468. Instead, where [c]ircumstances . . . make clear that the judge rests his decision upon the Commission s own reasoning that the [g]uidelines sentence is a proper sentence, explanation of the sentence is unnecessary. 6 Id. extensive Here, the court indicated it had considered all the guideline factors, and delineated specific importance. factors it found to be of particular It then pronounced a sentence within the guidelines See Rita, 127 S. Ct. at 2459, 2462 (approving appellate range. presumption of range). reasonableness Accordingly, we to find sentence that within court the guidelines adequately considered and explained the factors that led to the sentence imposed. Cummings s challenge to his sentence is accordingly without merit. Therefore, sentence. legal before affirm Cummings s conviction and We dispense with oral argument because the facts and contentions the we court, are and adequately further presented argument in will the not materials aid the decisional process. AFFIRMED 7
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