US v. James Sidbury, No. 12-4728 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4728 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES WESLEY SIDBURY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:12-cr-00011-F-1) Submitted: June 12, 2013 Decided: June 28, 2013 Before MOTZ, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Wesley Sidbury pled guilty to four counts of distribution of cocaine base, in violation of 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2013) (counts one through four), one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C.A. § 841(a)(1) (count five), and one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006) (count six). The district court calculated Sidbury s Guidelines range the under U.S. Sentencing Guidelines Manual ( USSG ) (2011) at 121 to 151 months imprisonment on counts one through five and 120 months imprisonment on count six, and sentenced Sidbury to concurrent terms of 121 months imprisonment on counts one through five and 120 months imprisonment on count six. Sidbury appeals his sentences. We affirm. We review the sentence imposed by the district court for reasonableness under an abuse-of-discretion Gall v. United States, 552 U.S. 38, 41, 51 (2007). entails appellate substantive A sentence consideration reasonableness imposed within of of a the both the sentence. properly This review procedural Id. calculated range is presumed reasonable by this Court. standard. at and 51. Guidelines United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only by showing that the sentence is 2 unreasonable when measured [(2006)] factors. against the [18 U.S.C.] § 3553(a) United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). Sidbury argues that the district court committed substantive error by rejecting his argument that the 18:1 weight ratio of cocaine base to powder cocaine in USSG § 2D1.1 is flawed because the ratio is not based on empirical data, and by basing the court s sentencing decision on erroneous policy presumptions about the prevalence of cocaine base and the ease with which it is distributed. It consider is well-established policy-based that objections to a the district Sentencing court may Guidelines and may vary from the Guidelines based on policy disagreements. Spears v. United (per curiam); States, Kimbrough 109-10 (2007). v. 555 United U.S. 261, States, 265-66 552 U.S. (2009) 85, 91, However, [a]lthough a sentencing court may be entitled to consider policy decisions underlying the Guidelines, including the presence or absence of empirical data, it is under no obligation 668 F.3d 95, to do 101 so. (4th United Cir.) States (internal v. Rivera-Santana, citation omitted), cert. denied, 133 S. Ct. 274 (2012). Kimbrough does not require appellate the Guideline. courts to United disagree States v. (8th Cir. 2010) (per curiam). with Talamantes, policy 620 underlying F.3d 901, a 902 While district courts certainly 3 may disagree adjust a with the sentence Guidelines for policy accordingly[,] . . . . if reasons they and do may not, [appellate courts] will not second-guess their decisions under a more lenient standard simply because the particular Guideline is not empirically-based. United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009). Here, the district arguments regarding the ultimately rejected them variance. After court 18:1 drug weight declined and reviewing acknowledged to the record, ratio, impose we Sidbury s a conclude but it downward that the district court did not abuse its discretion when it declined to vary below the Guidelines range and sentence. Sidbury fails to within-Guidelines sentences Accordingly, affirm rebut we We dispense with contentions are oral are the presumption substantively district argument adequately the because presented in court s that his reasonable. judgment. the facts and the materials legal before this Court and argument would not aid the decisional process. AFFIRMED 4
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