United States v. Lowry , 331 F. App'x 248 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4746
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT EARL LOWRY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (2:02-cr-00013-F)
Submitted: April 30, 2009 Decided: May 26, 2009
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Kelly L. Greene, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Earl Lowry appeals the 228-month sentence
imposed by the district court after his case was remanded for a
third sentencing hearing. Lowry contends that the district
court erred by denying him a jury trial to determine the amount
of crack for which he was responsible; that the evidence was
insufficient to support a finding of 125.4 grams of crack; and
that the sentence was unreasonable in light of Kimbrough v.
United States, 128 S. Ct. 558 (2007), and the 2007 crack
amendments to the guidelines. Although the first two issues are
meritless, we vacate Lowry’s sentence and remand for
resentencing in light of Kimbrough.
Appellate review of a sentence is for abuse of
discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007);
see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). The appeals court must ensure that the district court
committed no significant procedural error and that the sentence
is substantively reasonable. Gall, 128 S. Ct. at 597. Here,
Lowry correctly acknowledges that there is no right to the
empanelling of a jury to determine relevant conduct for
sentencing purposes. See United States v. Benkahla, 530 F.3d
300, 312 (4th Cir. 2008) (“[s]entencing judges may find facts
relevant to determining a Guidelines range by a preponderance of
the evidence, so long as that Guidelines sentence is treated as
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advisory and falls within the statutory maximum authorized by
the jury’s verdict”), cert. denied, 129 S. Ct. 950 (2009).
Moreover, the district court’s determination that Lowry was
responsible for 125.4 grams of crack was not clearly erroneous.
United States v. Fullilove, 388 F.3d 104, 106 (4th Cir. 2004)
(stating standard of review). The district court reviewed the
relevant trial testimony. Although the investigator did not
testify, the record reveals that defense counsel cross-examined
him concerning the drug amount both at Lowry’s trial and at his
first sentencing hearing in 2003.
After Lowry was sentenced, the crack guidelines were
amended to lower the offense levels for crack offenses and the
Supreme Court held, in Kimbrough, that sentencing courts may
consider the sentencing disparity between crack and cocaine
offenses in deciding whether to impose a sentence below the
advisory guideline range. 128 S. Ct. at 564. The 2007
amendments to the guidelines for crack offenses do not render
Lowry’s sentence unreasonable. He may seek retroactive
application of Amendment 706 to his sentence by applying to the
district court for relief under 18 U.S.C. § 3582(c)(2) (2000).
See United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008)
(declining to remand for resentencing in order for defendant to
pursue relief in district court under Amendment 706).
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Lowry also contends that his sentence is unreasonable
because the district court failed to consider the disparity as a
permissible ground for a sentence below the guideline range.
The government asserts that this claim must be reviewed for
plain error because Lowry did not request a variance on this
ground in the district court. However, we are satisfied that
Lowry preserved the issue for appeal. In his sentencing
memorandum, Lowry argued that the crack/cocaine sentencing
disparity was a factor that justified a sentence below the
guideline range pursuant to 18 U.S.C. § 3553(a) (2006), and that
the proposed guideline amendments for crack offenses were
insufficient to rectify the disparity. Although the court’s
response at sentencing was not clearly expressed, and defense
counsel did not argue the issue further, Lowry raised the issue
with sufficient precision to preserve it for appeal.
Because the issue was preserved, the government has
the burden of showing that the error was harmless. United
States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006). The
government has not identified any comment by the district court
that indicates that it would have imposed the same sentence had
Kimbrough been decided before Lowry’s sentence was imposed.
Therefore, Lowry is entitled to another sentencing hearing at
which the district court may reconsider the sentence in light of
Kimbrough.
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Accordingly, we vacate the sentence imposed by the
district court, and remand for resentencing in light of
Kimbrough. 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.
VACATED AND REMANDED
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