United States v. Bellamy , 356 F. App'x 653 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4887
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AL ANTONIO BELLAMY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00009-RLV-DCK-9)
Submitted: November 30, 2009 Decided: December 15, 2009
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard E. Beam, Jr., HUBBARD & BEAM, Gastonia, North Carolina,
for Appellant. Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Al Antonio Bellamy pled guilty, without a plea
agreement, to conspiracy to possess with intent to distribute
more than fifty grams of crack cocaine, more than five kilograms
of cocaine, and more than 1000 kilograms of marijuana, in
violation of 21 U.S.C. § 846 (2006). The district court
sentenced him to a 405-month term of imprisonment, a one-level
upward variance from the advisory guidelines range. On appeal,
Bellamy asserts that the district court’s application of the
murder cross-reference violated his Sixth Amendment rights and
that the court abused its discretion in varying from the
guidelines range. Finding no reversible error, we affirm.
Bellamy first asserts that application of the murder
cross-reference violated his Sixth Amendment rights because the
facts were neither submitted to a jury nor admitted by him. He
concedes, however, that judicial fact-finding is permitted. We
agree. See United States v. Benkahla, 530 F.3d 300, 312 (4th
Cir. 2008) (“Sentencing judges may find facts relevant to
determining a [g]uidelines range by a preponderance of the
evidence, so long as that [g]uidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.”), cert. denied, 129 S. Ct. 950 (2009).
Because the 405-month sentence falls within the statutory
maximum sentence of life imprisonment, see 21 U.S.C.A.
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§ 841(b)(1)(A) (West Supp. 2009), the district court’s finding,
by a preponderance of the evidence, that Bellamy committed
first-degree murder in a reign of terror related to his drug
activities did not violate the Sixth Amendment. To the extent
that Bellamy urges us to revisit this issue, “a panel of this
court cannot overrule, explicitly or implicitly, the precedent
set by a prior panel of this court. Only the Supreme Court or
this court sitting en banc can do that.” Scotts Co. v. United
Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002) (internal
quotation marks and citation omitted).
Bellamy also contends that the district court abused
its discretion in varying upward one offense level from the
advisory guidelines range. He asserts that the reasons stated
by the district court to support the variance already were taken
into account in the application of the murder cross-reference.
We review a sentence for reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); see United States v. Abu Ali, 528 F.3d 210, 261 (4th
Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).
In reviewing the substantive reasonableness of the
sentence, we “tak[e] into account the totality of the
circumstances, including the extent of any variance from the
[g]uidelines range.” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (internal quotation marks and citation omitted).
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Where a sentence is outside the advisory guidelines range, the
appellate court must “consider the extent of the deviation, but
must give due deference to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51. “‘[A] major departure should
be supported by a more significant justification than a minor
one[,]’ [b]ut a district court need not justify a sentence
outside the [g]uidelines range with a finding of ‘extraordinary’
circumstances.” United States v. Evans, 526 F.3d 155, 161 (4th
Cir. 2008) (quoting Gall, 552 U.S. at 47, 50). With these
standards in mind, we have reviewed the district court’s
explanation supporting the one-level upward variance and
conclude that the court did not abuse its discretion in light of
the multiple murders and shootings committed by Bellamy.
Accordingly, we affirm the district court’s judgment.
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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