US v. James William, No. 10-4355 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4355 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES JOHN WILLIAMS, a/k/a Shy, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (5:09-cr-00206-FL-2) Submitted: March 29, 2011 Decided: April 15, 2011 Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. David L. Neal, Hillsborough, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Jennifer P. MayParker, Eric D. Goulian, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James John Williams pled guilty, without a plea agreement, to two counts of distribution of five grams or more of cocaine base ( crack ), and aiding and abetting the same, in violation of 21 U.S.C. § 814(a) (2006) and 18 U.S.C. § 2 (2006). The district court sentenced Williams within the advisory Guidelines range to concurrent ninety-eight-month terms on each count. Williams unreasonable. appeals, claiming Williams Additionally, that his argues sentence that the is recent changes to the statutory provisions and Sentencing Guidelines relevant to crack cocaine offenses, contained in the Fair Sentencing Act of 2010, 1 apply in this case, and thus serve to reduce his sentencing range. sentence and remand this Williams asks us to vacate his case to the resentencing pursuant to these amendments. district court for For the reasons that follow, we affirm Williams sentence. This applying States, an 552 court abuse U.S. of 38, reviews a sentence for discretion standard. 51 see (2007); also Llamas, 599 F.3d 381, 387 (4th Cir. 2010). 1 reasonableness, Gall United v. United States v. This review requires Pub. L. No. 111-220, 124 Stat. 2372 (2010) (codified in scattered sections of Title 21 of the United States Code). 2 appellate consideration of both the procedural and substantive reasonableness of a sentence. Gall, 552 U.S. at 51. In determining procedural reasonableness, we consider whether the district court properly calculated the defendant s advisory Guidelines range, considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently Regardless of explained whether the the below, or an individualized district within-Guidelines record selected court sentence, assessment facts of the case before it. it based Id. sentence. imposes must on an place the above, on the particular United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks omitted). Williams does not dispute the calculation of his Guidelines range, but argues that his sentence is procedurally unreasonable because the court failed to carefully consider the § 3553(a) factors and provide an adequate reason for sentence. A district court is not required to robotically tick through § 3553(a) s every subsection on the record. its United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). The sentencing court s explanation must be sufficient to satisfy the appellate court that [the district court] has considered the parties arguments and has a reasoned basis for exercise [its] own legal decisionmaking authority. 3 United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). After reviewing the district court properly considered analyzed the arguments record, presented we the by the conclude § that 3553(a) parties, thorough explanation of the sentence it selected. the factors, and gave a We therefore hold that Williams sentence is procedurally reasonable. Where there is no significant procedural error, we next assess taking the into including the substantive account extent the of reasonableness totality any of variance of the the from sentence, circumstances, the Guidelines United States v. Morace, 594 F.3d 340, 345-46 (4th range. Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 307 (2010). Guidelines If range, reasonable. the sentence this Court is may within consider the it appropriate presumptively United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Citing Rita and Kimbrough v. United States, 552 U.S. 85 (2007), Williams argues that his Guidelines sentence should not be accorded a presumption of reasonableness, because the sentencing offenses is disparity not review process. courts to for based on crack cocaine empirical and evidence powder and a cocaine thorough However, Kimbrough does not require appellate discard the presumption 4 of reasonableness for sentences based on non-empirically grounded Guidelines. United States Cir.), v. Mondragon-Santiago, 564 F.3d 357, 366 (5th cert. denied, 130 S. Ct. 192 (2009); see also United States v. Talamantes, While 620 F.3d district Guidelines for 901, courts policy 901 (8th certainly reasons Cir. 2010) may disagree and may (per adjust curiam). with a the sentence accordingly[,] . . . if they do not, [appellate courts] will not second-guess simply their because based. the decisions under particular Mondragon-Santiago, a more Guideline 564 F.3d is at lenient not 367. standard empiricallyWe therefore conclude that the presumption of reasonableness applies to our review of Williams sentence. that Williams failed to Moreover, because we conclude overcome the presumption of reasonableness for his within-Guidelines sentence, we hold that the district court did not abuse its discretion in sentencing him within the Guidelines range to conccurrent terms of ninetyeight months imprisonment. Finally, Williams asks us to vacate his sentence and remand this case to the district court pursuant to the Fair Sentencing Act of 2010, which reduces the cocaine powder/cocaine base disparity by amending the drug quantities triggering the statutory penalties. retroactive and is However, the Fair Sentencing Act is not only applicable to defendants their offenses after its effective date. 5 who commit Williams criminal conduct predated the effective date of the Act and thus it does not apply. 2 Accordingly, we reject this contention. For the foregoing reasons, we affirm Williams criminal judgment. We dispense with oral argument because the facts and materials legal before contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 2 United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010); United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir. 2010); United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010), petition for cert. filed, __ U.S.L.W. __ (U.S. Feb. 24, 2011) (No. 10-9224); United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010), petition for cert. filed, __ U.S.L.W. __ (U.S. Mar. 4, 2011) (No. 10-9409); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010), petition for cert. filed, __ U.S.L.W. __ (U.S. Feb. 15, 2011) (No. 10-9271); United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010), cert. denied, __ U.S.L.W. __ (U.S. Mar. 21, 2011) (No. 10-8937). 6

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