US v. Todd Myers, No. 09-4619 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4619 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TODD LAMEL MYERS, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cr-00746-TLW-3) Submitted: July 26, 2010 Decided: August 17, 2010 Before KING, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael Chesser, Aiken, South Carolina, for Appellant. Kevin F. McDonald, Acting United States Attorney, Columbia, South Carolina, A. Bradley Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Todd Lamel Myers appeals his within-guidelines sentence following a guilty plea to conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846 (2006). We affirm. This court reviews within-guidelines sentences under a deferential abuse-of discretion standard, and only reverses errors that Mendoza-Mendoza, Gall v. United are significant. 597 F.3d States, 212, 552 219 U.S. United (4th 38, Cir. 51-52 States 2010) v. (citing (2007)). This standard of review applies to alleged Rita * errors with the same force that it applies to all other[] perceived errors. Id. Moreover, this court applies a presumption of reasonableness to within-guidelines sentences. E.g., United States v. Go, 571 F.3d 216, 218 (4th Cir. 2008). District presumption of Mendoza-Mendoza, courts do not, reasonableness 597 F.3d to at however, the 216-17 apply sentencing the same guidelines. (citations omitted). Instead, they must make an individualized assessment for each defendant. Id. (Significantly less explanation is required for a within-guidelines sentence than for one outside the advisory range). Myers alleges that the district court committed a procedural Rita error by applying an implicit or de facto * See Rita v. United States, 551 U.S. 338, 351 (2007). 2 presumption in favor of a guideline sentence. In support of his argument, he cites to the district court s statement that the advisory guidelines provide a reasonable basis for imposing a sentence. This court addressed appropriate touchstone for presumption that asserts 216-20. Myers in Mendoza-Mendoza evaluating the occurred sort here. of 597 the Rita F.3d at In that case, we stated that [i]f the sentencing court did what it was supposed to do hearing out both sides and making an individualized assessment in light of § 3553(a) then it should be protected from claims of having applied a Rita Id. at 218. presumption. Here, Myers has not argued that he was denied an opportunity to be heard or that the court failed to individually assess him at sentencing. City of Goldsboro, (failure to 178 F.3d specifically 231, 241 n.6 an issue in Accord Edwards v. raise (4th an Cir. 1999) opening brief results in abandonment of that issue). Moreover, after independently reviewing the record, it is clear that the district court: (1) paid attention to Myers arguments; (2) including Rita; authority in deciding factors to 3553(a) was familiar (3) with considered be Myers of the cases itself to sentence; (4) the utmost counsel be the cited, ultimate considered importance in the § deciding Myers sentence; and (5) considered the advisory guidelines to 3 be secondary factors. Further, when confronted with additional arguments why Myers should be sentenced to a below-guidelines sentence (i.e., his criminal history was relatively minor, and a long sentence would devastate his family), the district court responded directly to each claim and adequately addressed them. We conclude that the record, taken as a whole, indicates that the district court sentenced Myers to a withinguidelines sentence as a matter of judgment, not because it believed it was required to do so or because it believed the guidelines were presumptively correct. show a procedural Rita error. Myers has thus failed to Compare Mendoza-Mendoza, 597 F.3d at 219-20 (vacating sentence where district court stated that it did not agree with the guidelines, and that it was obligated to sentence defendant within them unless it could find a compelling reason to divert from them). Myers argument that his crack sentence substantively unreasonable is likewise without merit. is In his brief, Myers argues simply that any sentence treating crack [cocaine] more punitively than powder [cocaine] is inherently unreasonable and unfair. He states that any crack sentence based on a ratio other than 1 to 1, vis a vis powder cocaine is substantively unreasonable. However, Myers has not cited any case or authority that accepts his policy-driven arguments. 4 This those powder made by cocaine court has Myers, and repeatedly that crack the rejected sentencing offenses claims, such disparity violates either as between the Equal Protection Clause or a defendant s due process rights. See, e.g., United States v. Perkins, 108 F.3d 512, 518-19 & n.34 (4th Cir. 1997); United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (en banc). To the extent that Myers seeks to have us reconsider these decisions, a panel of this court cannot overrule the decision of a prior panel. Simms, 441 F.3d 313, 318 (4th See United States v. Cir. 2006). Moreover, Kimbrough v. United States, the case upon which Myers primarily See 552 U.S. 85, 107 relies, did not overturn these precedents. (2007) (sentencing courts are bound by the disparate statutory terms of imprisonment notwithstanding for district powder court s cocaine and discretion to cocaine depart base, from advisory Sentencing Guidelines ranges based on the disparity). Accordingly, we affirm the district court s judgment. 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 5
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