US v. Maurice McKenzie, No. 09-4362 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4362 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAURICE EDGAR MCKENZIE, a/k/a Cappo, Richard Knight, a/k/a Emanuel Askew, a/k/a Cappa, a/k/a Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Sol Blatt, Jr., Senior District Judge. (9:97-cr-00032-SB-1) Submitted: November 6, 2009 Decided: November 20, 2009 Before MICHAEL, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South Carolina, for Appellant. Peter Thomas Phillips, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Maurice Edgar McKenzie appeals from the district court s grant in part of his motion for reduction of sentence based upon the crack cocaine Guidelines pursuant to previously remanded 18 the amendments U.S.C. case to to § 3582(c) the the Sentencing (2006). district We court with directions for the court to provide adequate reasoning for its decision. See United States v. McKenzie, No. 08-7630 (4th Cir. Mar. 18, 2009) (unpublished). another order, reimposing expanded reasoning. The district court then entered the same sentence McKenzie again appealed. and providing On appeal, he asserts that the district court should have applied Apprendi v. New Jersey, 530 U.S. 466 (2000), when imposing his new sentence. He also claims that the district court s reasoning was still insufficient. As retroactively We affirm. to McKenzie s applicable first in a claim, § 3582 Apprendi is proceeding. not United States v. McBride, 283 F.3d 612, 615-16 (3d Cir. 2002); see also United States v. Dunphy, 551 F.3d 247, 251-53 (4th Cir.) (holding that proceedings under § 3582(c)(2) do not constitute a full resentencing of the defendant and stating that rule in Booker regarding criminal proof penalties has requirements no for application 2 facts to that increase proceedings under § 3582(c)(2) ), cert. denied, 129 S. Ct. 2401 (2009). the district Accordingly, this claim is without merit. Turning court again to failed McKenzie s to provide assertions that reasoning for its decision, McKenzie specifically argues that the district court failed to consider the fact that he was sentenced pre-Apprendi under a sentencing scheme that was later found to be unconstitutional. Further, McKenzie claims that the court s consideration of his post-conviction behavior was conclusory. Instead, McKenzie asserts that the court relied solely on the factors supporting his original sentence and failed to consider the present factors. In United States v. Legree, 205 F.3d 724, 728-29 (4th Cir. 2000), we held that there exists a presumption, absent a contrary indication considered motion. the § in the 3553(a) record, factors in that the denying district a § court 3582(c)(2) However, in United States v. Gall, 552 U.S. 38, 128 S. Ct. 586, 597 (2007), which was decided after Legree, the Supreme Court held that a sentencing judge must make an individualized sentence assessment based on the facts presented and explain adequately the chosen sentence. While we have not yet applied Gall to § 3582 motions, we find that, even under this heightened standard, the district court s reasoning was adequate. 3 The court stated that McKenzie s underlying crime and conduct was reprehensible, that a longer sentence would promote respect for the law, * and that neither the Supreme Court s new decisions nor McKenzie s post-conviction conduct entitled him to a lower sentence. Our review of the record makes it clear that the court considered McKenzie s arguments for a lower sentence and rejected them. It is also apparent from the record that the district court explicitly considered the § 3553 factors prior to imposing sentence. Thus, we find no abuse of discretion in the district court s recitation of its reasoning. Accordingly, we affirm. substitute and appoint counsel. We deny McKenzie s motion to We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED * Both the Government and McKenzie agreed that a sentence at the low end of the amended Guidelines range was appropriate. Instead, the district court imposed a sentence at the high end of the amended Guidelines range. 4
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