US v. Michael Boomer, No. 09-4859 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4859 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL LAMONT BOOMER, Defendant -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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Michael court s orders Lamont Boomer from a imposing appeals sentence after new the district granting 28 U.S.C.A. § 2255 (West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, failing Boomer to contends consider his that the request district for a court 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, disparity to yields achieve [18 a sentence U.S.C.] greater § 3553(a) s than [(2006)] Kimbrough v. United States, 552 U.S. 85, 110 (2007). under the advisory Sentencing Guidelines, district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines those Guidelines. based on a policy disagreement with Spears v. United States, ___ U.S. ___, 129 S. Ct. 840, 843-44 (2009). The district court is not required to apply a one-to-one ratio; Spears merely permits a district court to substitute its own ratio sentencing disparity is unwarranted. 3 if it determines the We review a sentence for reasonableness under an abuse of discretion standard. (2007). the This review requires appellate consideration of both procedural Id. Gall v. United States, 552 U.S. 38, 51 and Procedural substantive reasonableness reasonableness is of sentence. by determined a reviewing whether the district court properly calculated the defendant s advisory Guidelines § 3553(a) range factors, and any considered arguments the 18 presented U.S.C. by the parties, and sufficiently explained the selected sentence. Id. at 49-51. analyzed then Regardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record particular an facts individualized of the case assessment before it. based United on the States v. 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 whether the that the district 4 record court is knew insufficient that it had to the discretion to consider the sentencing disparity and, if so, what its reasoning discretion. was in deciding to decline to exercise its We therefore vacate the sentencing and § 3582(c) orders and remand the sentence for the district court to address Boomer s sentencing disparity district court then may argument. need to We revise note its that decision the when reentering its order regarding the § 3582(c) motion. However, we Boomer s do not express an opinion on the merits of 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 adequately and argument presented would not in aid the the materials decisional process. VACATED AND REMANDED 5
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