United States v. Larrick Rowe ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13536 ELEVENTH CIRCUIT
FEBRUARY 4, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 08-00135-CR-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRICK ROWE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(February 4, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Larrick Rowe appeals his 84-month sentence, which was at the low-end of
his guideline range, for possession with intent to distribute cocaine, in violation of
21 U.S.C. § 841(a)(1). Rowe does not appeal his 60-month sentence for
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A), which runs consecutive to his drug conviction. Rowe’s 84-
month sentence was based on his possession of both crack and powder cocaine.
On appeal, Rowe argues that the prosecutor committed prosecutorial
misconduct at sentencing because, although he recited the United States
Department of Justice’s (“DOJ’s”) policy supporting the elimination of the
crack/powder cocaine disparity in the Sentencing Guidelines, he undermined the
DOJ’s policy by arguing for a sentence towards the middle of his guideline range.
He contends that, as a result, the district court refused to vary below the low-end of
his guideline range.
Normally, we review “claims of prosecutorial conduct de novo.” United
States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008). However, because Rowe
failed to object to the prosecutor’s statements before the district court, we review
“for plain error that is so obvious that failure to correct it would jeopardize the
fairness and integrity of the trial.” Id. at 1306-07 (quotation omitted). “To
establish prosecutorial misconduct, (1) the remarks must be improper, and (2) the
2
remarks must prejudicially affect the substantial rights of the defendant.” Id. at
1307.
Because the prosecutor complied with the DOJ’s policy, which required him
to inform the district court that the DOJ and the Obama Administration supported
the elimination of the crack/powder cocaine disparity in the Sentencing Guidelines,
he did not commit prosecutorial misconduct, plainly or otherwise, by arguing for a
within-guideline sentence. Accordingly, upon review of the record and
consideration of the parties’ briefs, we affirm Rowe’s 84-month sentence for
possession with intent to distribute cocaine.
AFFIRMED.
3