US v. Michael Boomer, No. 11-4280 (4th Cir. 2013)

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This opinion or order relates to an opinion or order originally issued on November 10, 2011.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4280 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL LAMONT BOOMER, Defendant - Appellant. On Remand from the Supreme Court of the United States. (S. Ct. No. 11-8737) Submitted: February 28, 2013 Before MOTZ and Circuit Judge. DAVIS, Circuit Decided: Judges, and March 14, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Joseph R. Pope, WILLIAMS MULLEN, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Angela Mastandrea-Miller, Richard D. Cooke, Assistant United States Attorneys, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Lamont Boomer appeals from the sentence imposed after he was resentenced on remand from an appeal from the sentence imposed after relief was granted under 28 U.S.C.A. § 2255 (West Supp. 2012) and 18 U.S.C. § 3582(c)(2) (2006). Boomer was found guilty after a jury trial of possession with the intent to distribute fifty grams or more of cocaine base, possession with the intent to distribute marijuana, and possession of a firearm in furtherance of a drug trafficking crime. Boomer sentences powers argues applicable doctrine. that in He his the Supreme Court statutory case also substantively unreasonable. but the violate argues mandatory the that minimum separation of sentence is his We affirmed the judgment in 2011, granted Boomer s petition for writ of certiorari, vacated the judgment, and remanded for consideration in light of Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012). We have reviewed the relevant case law on remand and affirm the judgment. Boomer sentences argues applicable in that his statutory case violate mandatory the minimum separation of powers doctrine because they relegate the sentencing role of the judiciary individual to administering discretion to the impose 2 sentence a without sentence that having the the court chooses. He argues that the executive branch should not establish punishments for crimes. Boomer did not raise this issue in the district court; therefore it is reviewed for plain error. Generally, this court reviews de novo a district court s ruling on a constitutional challenge to a statute. 327 (4th Cir. 2001). United States v. Buculei, 262 F.3d 322, When a defendant fails to timely raise a constitutional challenge in the district court, however, this court reviews Olano, 507 the U.S. issue 725, for plain 732-33 error. (1993). United Because States Boomer v. only asserted his separation of powers argument on appeal, his claim is reviewed to determine whether (1) there was error; (2) that was plain; and (3) that affected substantial rights. Id. at 732-35. We conclude that Boomer s constitutional challenge is without merit and that the district court properly considered itself constrained by the applicable statutory minimum sentence. See Harris v. States, criticisms of (recognizing United 536 U.S. mandatory 545, 568-69 minimum (2002) sentencing provisions, but not holding them unconstitutional); Chapman v. United States, 500 U.S. 453, 467 (1991) (noting that determinate sentences are not unconstitutional); United States v. Gonzalez-Ramirez, 561 F.3d 22, 30 (1st Cir. 2009) (deciding that 3 prosecutor s discretion to seek enhanced minimum sentence does not violate separation of powers doctrine). Boomer argues that substantively unreasonable court upon relied in his sentence because imposing the the on factors sentence count one is the district were already considered legislatively when calculating the mandatory minimum sentence or were taken into account in the sentence imposed for possession of a firearm in furtherance of a drug trafficking crime. * Boomer argues specifically that the court abused its discretion because misdemeanors, which the he court states considered are not his offenses thirteen under the Guidelines warranting a greater sentence, that the court erred in finding that he was more than a casual distributor of drugs in light of the three bags of fifty-nine grams of crack cocaine in his possession, and that his possession of a firearm and bulletproof conviction vest and were should acts not punished be under considered to his § 924(c) increase his possession with intent to distribute sentence. * Boomer s brief states that the 125-month sentence is unreasonable. However, the 125 months was imposed after consideration of Amendments 706 and 711 to the Sentencing Guidelines and Boomer s 18 U.S.C. § 3582(c)(2) motion. At resentencing, which occurred prior to adjudication of the § 3582(c)(2) motion, the sentence was 144 months on count one, a downward variance from the 151-188 months original Guidelines range. The total sentence on all counts was 204 months. 4 A sentence is reviewed abuse of discretion standard. 38, 51 (2007). for reasonableness under an Gall v. United States, 552 U.S. This review requires consideration of both the procedural and substantive reasonableness of a sentence. Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). A sentence imposed within the properly calculated Guidelines range is presumed reasonable by this court. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). First, the court did not err in considering Boomer s thirteen misdemeanor convictions. Not all of the convictions were counted for purposes of criminal history points, but it is clear from multiple the transcript convictions that the demonstrated court a concluded that the pattern of sentence is regular violations and indifference toward the law. Next, Boomer contends that his unreasonable because the district court noted that, based on the quantities Boomer involved, had been he was convicted more of than a casual possession distributor. with intent to distribute, and the court is required to sentence in compliance with the jury s verdict. 460-61 (4th Cir. United States v. Curry, 461 F.3d 452, 2006). Finally, Boomer claims that the district court s reliance on his possession of a firearm and bullet-resistant vest was error and makes his sentence substantively unreasonable because this conduct was punished in 5 count three, under § 924(c), and should not be used to increase his sentence above the mandatory minimum for count one. Boomer is incorrect regarding the bulletproof vest; he did not receive an enhancement based on the vest. The possession of a vest may be deemed an aggravating fact, demonstrating a deeper level of distribution activity requiring serious safety measures. Although the possession of a firearm was the subject of the § 924(c) count, the court s reasoning appears to indicate that the possession it referred to was part of a pattern of defiance of the law and immersion in drug trafficking. Consideration of the substantive reasonableness of a sentence requires an assessment of the totality of circumstances underlying the sentence, including the extent of any variance from the Sentencing Guidelines range. 528 F.3d 210, 261 (4th Cir. 2008). United States v. Abu Ali, Viewing the totality of the evidence, we conclude that the 204-month total sentence, which included a downward variance, was not an abuse of discretion and therefore the sentence is reasonable. For the first time in his reply brief, Boomer argued that the Fair Sentencing Act (FSA) should have applied to him at resentencing. Boomer conceded in his opening brief did not raise the issue. reply brief that his Although generally we will not consider issues raised for the first time in a reply brief, Yousefi v. I.N.S., 260 F.3d 318, 326 (4th Cir. 2001), we 6 consider Boomer s argument in light of the Supreme remand and supplemental briefing by the parties. Court s In ordering remand, the Supreme Court did not determine the merits of the FSA claim. Boomer may have been eligible to be sentenced under the FSA because, although he committed his offenses before August 3, 2010, the effective date of the FSA, the district court conducted his second resentencing after that date. The FSA is not retroactive for offenders who were sentenced prior to enactment of the statute. 237, 248 (4th Cir.), United States v. Bullard, 645 F.3d cert. denied, 132 S. Ct. 356 (2011). However, the Supreme Court held that the FSA is retroactively applicable to a defendant who committed his offenses prior to August 3, 2010, but was sentenced after that date. S. Ct. at 2335. years before Dorsey, 132 Although Boomer was originally sentenced six the FSA s effective date, his resentencing constituted a full sentencing hearing. most recent Dorsey does not make a distinction between original and resentencings after the FSA s effective date. The Government and Defendant agree that in light of Dorsey, the new statutory minimum sentences of the FSA should have applied at resentencing after the effective date of the Act. find Even if we assume the FSA applies, we nevertheless do not reversible error in the sentencing 7 proceedings appealed here. When considering whether preserved procedural sentencing errors require resentencing, the court applies a harmless error standard. See United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir.), cert. denied, 132 S. Ct. 454 (2011); United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010). Accordingly, we may affirm a sentence despite such an error if the Government demonstrates that the error did not have a substantial and injurious effect or influence on the result and we can say with fair assurance that judgment was not affected by the error. the district court s Boulware, 604 F.3d at 838 (internal quotation marks and alterations omitted). Any error in failing to apply minimum under the FSA was harmless error. court considered discretion to Boomer s vary below arguments, the the statutory Here, the district recognized Guidelines new range that and it had chose to impose a sentence above the pre-FSA ten-year statutory minimum sentence. While the failure to apply the FSA five-year minimum was error, we conclude that the Government has established that the error was harmless and certainly did not result in plain error. Id.; see also Puckett v. United States, 556 U.S. 129, 135 (2009) (plain error requires that the legal error must be clear or obvious, rather than subject to reasonable dispute ). Accordingly, we affirm the criminal judgment. Because there is no error in the resentencing and Boomer did not raise 8 any issues specific to the order reducing his sentence, we also affirm the district court s order granting a sentence reduction under 18 U.S.C. § 3582(c)(2). 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 9