US v. Michael Boomer, No. 11-4280 (4th Cir. 2011)
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The court issued a subsequent related opinion or order on March 14, 2013.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4280 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL LAMONT BOOMER, Defendant -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. Appeal 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 31, 2011 Before MOTZ and Circuit Judge. DAVIS, Circuit Decided: Judges, and November 10, 2011 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 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. 2011) and 18 U.S.C. § 3582(c) (2006). guilty after a jury trial of possession Boomer was found 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. statutory mandatory minimum sentences Boomer argues that applicable violate the separation of powers doctrine. in his case He also argues that his sentence is substantively unreasonable. Finding no error, we affirm. Boomer sentences argues applicable in that his statutory case mandatory violate the minimum separation of powers doctrine because they relegate the sentencing role of the judiciary to administering the individual discretion to chooses. He that argues sentence impose the a without sentence executive that branch having the the court should not establish punishments for crimes. Boomer did not raise this issue in the district court; therefore, court it reviews constitutional is de reviewed for plain novo a district challenge to a 2 error. Generally, court s statute. ruling United this on States a v. Buculei, 262 F.3d 322, 327 (4th Cir. 2001). When a defendant fails to timely raise a constitutional challenge in the district court, however, this court reviews the issue for plain error. United States v. Olano, 507 U.S. 725, 732-33 (1993). Boomer only asserted his separation of powers Because argument on appeal, his claim is reviewed to determine whether (1) there was error; (2) that was plain; and (3) that affected substantial rights. Olano, 507 U.S. 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. (recognizing United States, criticisms of 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. GonzalezRamirez, 561 F.3d 22, 30 (1st Cir. 2009) (deciding that prosecutor s discretion to seek enhanced minimum sentence does not violate separation of powers doctrine), cert. denied, 130 S. Ct. 524 (2009). Boomer argues that his 125-month sentence on count one is substantively unreasonable because the factors the district court relied upon in imposing the sentence were already considered legislatively when calculating the mandatory minimum 3 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 and vest were should acts not punished be under considered to his § 924(c) increase his possession with intent to distribute sentence. 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 the transcript that 4 the court concluded that the multiple convictions demonstrated a regular pattern of violations and indifference toward the law. Next, unreasonable quantities Boomer Boomer because the involved, had been contends he court was noted more convicted that of his sentence based that, than a was the casual possession on distributor. with intent to distribute, and the court is required to sentence in compliance with the jury s verdict. United States v. Curry, 461 F.3d 452, 460-61 (4th Cir. 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 count three, under § 924(c), and should not be used to increase his sentence above the mandatory regarding minimum the for bulletproof count vest; enhancement based on the vest. deemed an aggravating distribution activity fact, one. he Boomer did is not incorrect receive an The possession of a vest may be demonstrating requiring serious a deeper safety level of 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 a part of a defiance of the law and immersion in drug trafficking. 5 pattern of 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 Guidelines range. 210, 261 (4th Cir. 2008). United States v. Abu Ali, 528 F.3d Viewing the totality of the evidence, we conclude that the 125-month sentence, five months above the mandatory minimum and including a downward variance, was not an abuse of discretion and therefore the sentence is reasonable. For the first time in his reply brief, Boomer argues that the Fair resentencing. Sentencing Act should have applied to him at In the district court he conceded that the Fair Sentencing Act did not apply. He also concedes in his reply brief that his opening brief did not raise the issue. The court will not consider issues raised for the first time in a reply brief. See United States v. Brooks, 524 F.3d 549, 556 n.11 (4th Cir. 2008); Yousefi v. United States INS, 260 F.3d 318, 326 (4th Cir. 2001) challenge ( Because to abandoned it. [a [the] basis for opening the brief agency s fails to decision], raise he a has The fact that [he] pursues this issue in his reply brief does not redeem his failure to do so in the opening brief. (internal citations omitted)); Edwards Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). decline to consider the issue. 6 v. City of We therefore Accordingly, we affirm the criminal judgment. Because there is no error in the resentencing and Boomer did not raise any issues specific to the order reducing his sentence, we also affirm the district court s order granting a sentence reduction under § 3582(c). facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 7
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