US v. Michael Boomer

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4859 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL LAMONT BOOMER, Defendant - Appellant. No. 09-7412 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL LAMONT BOOMER, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:04-cr-00089-HEH-1) Submitted: October 29, 2010 Decided: November 19, 2010 Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Mark Bodner, Fairfax, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Angela Mastandrea-Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Michael court's orders Lamont imposing Boomer a new appeals sentence from after the district 28 granting U.S.C.A. § 2255 (West Supp. 2010) relief and Boomer's motion for a sentence reduction under 18 U.S.C. § 3582(c) (2006). We vacate the orders and remand for resentencing consistent with this opinion. On erred in appeal, to Boomer contends his that the district for a court failing consider request sentence reduction based on the sentencing disparity between crack and powder cocaine when imposing sentence. The district court does not err if, when sentencing a defendant, it concludes "that the crack/powder necessary' purposes." Rather, to disparity achieve yields [18 a sentence `greater than U.S.C.] § 3553(a)'s [(2006)] Kimbrough v. United States, 552 U.S. 85, 110 (2007). the advisory Sentencing Guidelines, "district under courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines." Spears v. United States, ___ U.S. ___, 129 The district court is not required S. Ct. 840, 843-44 (2009). to apply a one-to-one ratio; Spears merely permits a district court to substitute its own ratio if it determines the sentencing disparity is unwarranted. 3 We review a sentence for reasonableness under an abuse of discretion standard. (2007). the Id. Gall v. United States, 552 U.S. 38, 51 This review requires appellate consideration of both and substantive reasonableness is of a by sentence. reviewing procedural Procedural reasonableness determined whether the district court properly calculated the defendant's advisory § 3553(a) Guidelines factors, range and then considered the 18 U.S.C. by the Id. analyzed any arguments presented parties, and sufficiently explained the selected sentence. at 49-51. "Regardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record an facts `individualized of the case assessment' it." based United on States the v. particular before Carter, 564 F.3d 325, 330 (4th Cir. 2009). Here, the district court did not explicitly address Boomer's sentencing disparity argument. In fact, the court stated that "the crack disparity will be considered with respect to the motion under 3582(c)." Although it is possible that the court recognized its discretion to vary downward and decided that the two-level reduction in the upcoming 3582(c) proceeding would be sufficient, the record is silent on the court's reasoning on this issue. We determine conclude the that the record court is insufficient that it had to the whether district knew 4 discretion to consider the sentencing disparity and, if so, what its reasoning was in deciding to decline to exercise its discretion. We therefore vacate the sentencing and § 3582(c) orders and remand the sentence for the district court to address Boomer's district sentencing court may disparity then need argument. to revise We its note that the when decision reentering its order regarding the § 3582(c) motion. we do not express an opinion on the merits of However, Boomer's sentencing disparity argument or the resolution of the § 3582(c) motion. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. VACATED AND REMANDED 5