US v. David Howard, No. 09-4925 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4925 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID L. HOWARD, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:04-cr-00271-RJC-2) Submitted: November 4, 2010 Decided: December 2, 2010 Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Executive Director, Ann L. Hester, Peter S. Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David L. Howard appeals his conviction and life sentence for one count of conspiracy to commit offenses against the United States in violation of 18 U.S.C. § 371 (2006), ten counts of interstate wire transfer of funds in aid of racketeering enterprises in violation of 18 U.S.C. §§ 1952(a), 2 (2006), one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (2006), one count of conspiracy to possess with intent to distribute cocaine base and using a person under eighteen years of age in furtherance thereof in violation of 21 U.S.C. §§ 846, 841, 861 (2006), and two counts of possession with intent to distribute cocaine base and aiding and abetting the same in violation of 21 U.S.C. § 841, 18 U.S.C. § 2. We affirm. Howard was convicted of the offenses in 2006. Upon consideration of the issues raised in his initial appeal, we affirmed his concluding convictions that the but district vacated court his sentence improperly after imposed an enhancement to his offense level for being a leader of the money laundering again imposed district based conspiracy. on court a life (1) acquitted At sentence. erred in conduct unreasonable sentence. resentencing, Howard imposing and (2) a the now district argues sentence imposed a court that the enhancement substantively We do not agree with either contention. 2 An appellate court reviews a sentence reasonableness under an abuse-of-discretion standard. United States, 552 U.S. 38, 51 (2007). consideration of both the reasonableness of a sentence. Gall v. This review requires procedural Id. for and substantive First, the court must assess whether the district court properly calculated the guidelines range, considered analyzed any the 18 arguments U.S.C. § 3553(a) presented by (2006) the factors, parties, and Id. at 49-50; see sufficiently explained the selected sentence. United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ( [A]n individualized explanation must United v. 564 (same). States Carter, accompany F.3d 325, every 330 sentence. ); (4th Cir. 2009) An extensive explanation is not required as long as the appellate court is satisfied that [the district court] has considered the parties arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority. States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) United (quoting Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied, ___U.S.___, 2010 WL 23245029 (October 4, 2010). I. Howard was Firearms Enhancement indicted for use of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. §§ 924(c), 2 (2006) and one count of possession of a 3 firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (2006). The jury acquitted him of both counts, but at sentencing, his offense level was enhanced two levels pursuant Sentencing Guidelines Manual § 2D1.1(b)(1) (2009). he argues that his Sixth Amendment rights were to U.S. On appeal, violated by enhancing his sentence based on facts that were not found beyond a reasonable doubt by a jury. have previously considered The merits of his claim aside, we and rejected this argument. See United States v. Perry, 560 F.3d 654 (4th Cir.), cert. denied, 130 S. Ct. 177 (2009). A panel of this court cannot overrule the decision of a prior panel. United States v. Simms, 441 F.3d 313, 318 (4th Cir. 2006). II. Substantive Reasonableness Howard next claims that the district court erred in failing to award a variance in light of the disparity between powder cocaine and crack cocaine sentences. Even if the sentence is procedurally reasonable, the court must consider the substantive reasonableness of the sentence, examin[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Moreover, this court applies a presumption of 4 reasonableness to within-guidelines sentences. See, e.g., United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). We have reviewed the record and we conclude that the district court was aware that it could impose a variance, but conscientiously declined to do so. variance was required in light Howard argues that such a of the crack/powder sentencing disparity, but we do not agree. cocaine We conclude that Howard has failed to rebut the presumption of reasonableness accorded to his within-guidelines sentence. We court. legal before therefore affirm the judgment of the district We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5

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