US v. Kendrick Bowden, No. 09-5190 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5190 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KENDRICK RAMON BOWDEN, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00222-WO-1) Submitted: June 17, 2010 Before MOTZ and Circuit Judge. KING, Decided: Circuit Judges, and June 23, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion. J. Donald Cowan, Jr., Heather H. Wright, ELLIS & WINTERS, LLP, Greensboro, North Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kendrick distribution of Ramon Bowden cocaine pled base, in § 841(a)(1), (b)(1)(B) (2006). guilty to violation one of count 21 of U.S.C. Under the properly calculated advisory Sentencing Guidelines, his range of imprisonment was 87 to 108 months. The district court, after giving consideration to the sentencing factors under 18 U.S.C. § 3553(a) (2006) and the disparity sentencing, between varied imprisonment. Anders v. Bowden s crack downward, cocaine sentencing and powder Bowden to 72 cocaine months On appeal, counsel has filed a brief pursuant to 386 California, sentence is U.S. 738 unreasonable (1967), because suggesting that district court the declined to impose a sentence based on a 1:1 ratio for crack and powder cocaine. Although Bowden was informed of his right to file a pro se supplemental brief, he has not done so. Government has declined to file a response. The We affirm. We review a sentence imposed by a district court under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d 155, 161 appellate (4th court Cir. must 2008). first In reviewing ensure that a the sentence, district the court committed no significant procedural error, such as improperly calculating the guidelines range, failing to consider the § 3553(a) factors, or failing to adequately explain the chosen 2 sentence. errors, Gall, 552 U.S. at 51. the appellate reasonableness of the sentence, the district assessment based court on If there are no procedural then considers sentence. court the Id. must facts the substantive When make presented an and rendering a individualized state in open court the particular reasons supporting its chosen sentence. United States v. Carter, 564 F.3d 325, 328 (4th (internal quotation marks and citations omitted). Cir. 2009) This requires the district court to provide a sufficient explanation of the sentence to satisfy this court that the district court has a reasoned basis for its decision and has considered the parties arguments. determined by Substantive reasonableness of the sentence is Id. taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at 51). We procedurally United find and States, the district 552 U.S. 85, sentence reasonable. substantively court s In 110 (2007), the was both Kimbrough Supreme v. Court reemphasized that the crack cocaine guidelines are advisory only and held that it would not be an abuse of discretion for a district court to conclude when sentencing a . . . defendant that the crack/powder disparity yields a sentence greater than necessary to achieve § 3553(a) s purposes, even in a mine-run 3 case. Subsequently, the Court held that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based Guidelines. (2009). on a policy disagreement with those Spears v. United States, 129 S. Ct. 840, 843-44 In this case, the district court clearly understood its discretion to consider Bowden s disparity arguments in selecting a sentence; it clearly exercised this discretion in sentencing Bowden below the advisory Guidelines range based on disparity and its consideration of the § 3553(a) factors. find no abuse of discretion in the district this We court s determination of Bowden s sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Bowden s conviction and sentence. This court requires that counsel inform Bowden, in writing, of the right to petition the Supreme Court of the United States for further review. If Bowden requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Bowden. We dispense with oral argument because the facts and legal contentions are adequately presented in the 4 materials before the court and argument would not aid the decisional process. AFFIRMED 5
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