United States v. Reginald Morton ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4230
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
REGINALD DARWIN MORTON, a/k/a Jay, a/k/a Boogie, a/k/a
Jason, a/k/a Novacaine,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00024-JPJ-PMS-14)
Submitted: November 29, 2012 Decided: December 17, 2012
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Helen Eckert Phillips, ALLEN, KOPET & ASSOCIATES, PLLC, Bristol,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Reginald Darwin Morton of
conspiracy to possess with intent to distribute and distribute
more than fifty grams of cocaine base (“crack”) and less than
500 grams of cocaine, in violation of 21 U.S.C. § 846 (2006).
The district court initially sentenced Morton to 240 months of
imprisonment. On appeal from the judgment, we affirmed the
conviction, but vacated the sentence and remanded for
resentencing in light of United States v. Simmons, 649 F.3d 237(4th Cir. 2011) (en banc). On resentencing, the court sentenced
Morton to 210 months of imprisonment, and he again appeals. For
the reasons that follow, we affirm. *
Morton first argues that the district court erred in
failing to apply the Fair Sentencing Act (“FSA”) to determine
the statutory penalties applicable to Morton. However, in his
opening brief, Morton fails to properly raise this issue and has
therefore forfeited appellate review. See Eriline Co. S.A. v.
Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006) (finding
conclusory single sentence in brief “insufficient to raise on
*
In addition to the arguments raised by appellate counsel,
Morton filed a pro se supplemental brief raising additional
issues. We have considered the issues raised in Morton’s pro se
brief and conclude that they lack merit.
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appeal any merits-based challenge to the district court’s
ruling”).
Even were we to consider this issue, however, Morton
is not entitled to relief. When considering whether preserved
procedural sentencing errors require resentencing, we apply a
harmless error standard. See 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” the district court’s judgment was not affected by the
error. Id. (internal quotation marks and alterations omitted).
Prior to the enactment of the FSA, a defendant who was
held responsible for more than fifty grams of crack was subject
to a term of imprisonment between ten years and life. See 21
U.S.C. § 841(b)(1)(A) (2006). Under the FSA, however, in order
to be subject to a statutory mandatory minimum of ten years of
imprisonment, a defendant must be found to have been responsible
for 280 grams or more of crack. See 21 U.S.C.A. § 841(b)(1)(A)
(West Supp. 2012). If the defendant was responsible for less
than 280 but more than twenty-eight grams of crack, the
applicable statutory penalties range from five to forty years of
imprisonment. See 21 U.S.C.A. § 841(b)(1)(B) (West Supp. 2012).
In Dorsey v. United States, 567 U.S. ___, 132 S. Ct. 23213
(2012), the Supreme Court determined that the FSA applies to
defendants who committed their offenses prior to the effective
date of the Act, August 3, 2010, but who were sentenced after
that date.
Here, the jury determined that Morton was responsible
for more than fifty grams of crack under the statute, and he was
resentenced after August 3, 2010. Therefore, the applicable
statutory penalties were between five and forty years of
imprisonment. At the resentencing hearing, however, the
district court erroneously stated that the statutory mandatory
minimum was ten years of imprisonment. While this was error, we
conclude that the Government has established that the error was
harmless.
Morton next argues on appeal that the district court
erred in failing to distinguish between crack/cocaine base and
powder cocaine in calculating the drug weight. As Morton failed
to raise this argument before the district court, we decline to
consider it on appeal. See Muth v. United States, 1 F.3d 246,
250 (4th Cir. 1993) (“[I]ssues raised for the first time on
appeal generally will not be considered . . . [unless] refusal
to consider the newly-raised issue would be plain error or would
result in a fundamental miscarriage of justice.”). In any
event, it is clear that the district court correctly applied the
mandate rule in concluding that it could not on remand
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reconsider the drug weight for which Morton was responsible as
Morton failed to challenge the drug weight in his initial
appeal. See United States v. Susi, 674 F.3d 278, 283 (4th Cir.
2012) (mandate rule forecloses litigation of issues decided by
the district court but foregone on appeal or otherwise waived).
Finally, Morton argues that the district court abused
its discretion by failing to adequately consider his
post-sentencing rehabilitation on resentencing. Again, Morton
has failed to preserve this argument by failing to properly
raise it in his opening brief. See Johnson, 440 F.3d at 653
n.7. Regardless, we conclude that the district court properly
considered Morton’s arguments related to his post-sentencing
conduct. The court explicitly discussed Morton’s
rehabilitation, along with other factors that the court
considered important, when sentencing Morton to the low end of
the advisory Guidelines range to which the district court had
already downwardly departed.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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