US v. Robert Lowry, No. 09-4956 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4956 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT EARL LOWRY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (2:02-cr-00013-F-1) Submitted: November 29, 2010 Decided: December 23, 2010 Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Kelly L. Greene, GREENE & WILSON, P.A., New Bern, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Earl Lowry appeals the 195-month sentence imposed by the district court after his case was remanded for a fourth sentencing hearing so that the district court could reconsider the previously imposed 228-month sentence in light of Kimbrough v. United States, 552 U.S. 85 (2007) (holding that sentencing court may vary below guideline range based on disparity between crack and powder cocaine sentencing scheme). Lowry argues that the district court erred by denying his request for a downward variance based on issues not relevant to the crack/cocaine sentencing disparity, and failed to address on the merits his argument concerning disparity by either specifically accepting the current ratio or adopting its own. We affirm. 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. whether range, analyzed the district considered any court the 18 arguments Gall v. This review requires procedural Id. for and substantive First, the court must assess properly U.S.C. presented calculated ยง 3553(a) by (2006) the sufficiently explained the selected sentence. the guideline factors, parties, and Id. at 49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ( [A]n 2 individualized explanation must United v. 564 States (same). 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, 131 S. Ct. 165 (2010)). Lowry concedes that the district court correctly determined his guideline range, but contends that the district court failed to address his arguments for a variance, gave no reasoned explanation sentencing denied as to whether disparity the between crack variance request on or not and [it] powder irrelevant accepted the cocaine, and considerations[.] However, the district court clearly stated that it understood its authority to deviate from the guidelines continued crack/cocaine sentencing disparity. reject with the our current mandate guideline to sentencing reconsider the based on the The court did not scheme, sentence but in complied light of Kimbrough. In Spears v. United States, 129 S. Ct. 840 (2009), the Supreme Court acknowledged that Kimbrough stood for the proposition that sentencing courts have the authority to vary 3 from the crack cocaine guidelines based on policy disagreement with them, determination and not that particular case. simply they based yield an on an excessive Spears, 129 S. Ct. at 843. individualized sentence in a Spears does not hold that a district court must vary from the guidelines or state what it believes the ratio should be. See id. at 844 ( we now clarify that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines ). We conclude that the district court indicated with sufficient clarity its response to the parties arguments and that the sentence is procedurally and substantively reasonable. See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008) (applying presumption of substantive reasonableness to withinguideline sentence). by the district court. We therefore affirm the sentence imposed 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 4
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