United States v. Michael Boomer , 519 F. App'x 778 ( 2013 )

UNPUBLISHED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 Decided: March 14, 2013
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 argues that the statutory mandatory minimum
sentences applicable in his case violate the separation of
powers doctrine. He also argues that his sentence is
substantively unreasonable. We affirmed the judgment in 2011,
but the Supreme Court 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 argues that statutory mandatory minimum
sentences applicable in his case violate the separation of
powers doctrine because they relegate the sentencing role of the
judiciary to administering the sentence without having the
individual discretion to impose a sentence that the court
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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. United States 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). Because Boomer 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. United States, 536 U.S. 545, 568-69 (2002)
(recognizing criticisms of mandatory minimum 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
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prosecutor’s discretion to seek enhanced minimum sentence does
not violate separation of powers doctrine).
Boomer argues that his 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
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 the court considered his thirteen
misdemeanors, which he states are not offenses 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 vest were acts punished under his § 924(c)
conviction and should not be considered to 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.
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A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). 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 the court concluded that the
multiple convictions demonstrated a regular pattern of
violations and indifference toward the law.
Next, Boomer contends that his sentence is
unreasonable because the district court noted that, based on the
quantities involved, he was more than a casual distributor.
Boomer had been convicted of possession 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
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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. United States v. Abu Ali,
528 F.3d 210, 261 (4th Cir. 2008). 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 reply brief that his
opening brief did not raise the issue. 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
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consider Boomer’s argument in light of the Supreme Court’s
remand and supplemental briefing by the parties. 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. United States v. Bullard, 645 F.3d
237, 248 (4th Cir.), 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. Dorsey, 132
S. Ct. at 2335. Although Boomer was originally sentenced six
years before the FSA’s effective date, his most recent
resentencing constituted a full sentencing hearing. 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. Even if we assume the FSA applies, we nevertheless do not
find reversible error in the sentencing proceedings appealed
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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” the district court’s
judgment was not affected by the error. Boulware, 604 F.3d at
838 (internal quotation marks and alterations omitted).
Any error in failing to apply the new statutory
minimum under the FSA was harmless error. Here, the district
court considered Boomer’s arguments, recognized that it had
discretion to vary below the Guidelines range and 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
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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
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