United States v. Anderson , 241 F. App'x 941 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4725
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEVAN ANDERSON,
Defendant - Appellant.
No. 06-4849
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
JEVAN ANDERSON,
Defendant - Appellee.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (4:97-cr-00034-BO)
Submitted: August 29, 2007 Decided: September 12, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, John Stuart Bruce, First Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jevan Anderson was convicted under 21 U.S.C. § 846 (2000)
for conspiracy to distribute and to possess with intent to
distribute crack cocaine. Between Anderson’s initial sentence and
now, the Supreme Court handed down its landmark decisions in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Booker, 543 U.S. 220 (2005), which both have impacted Anderson’s
sentence. The case is now before us for a fourth time on
Anderson’s appeal and the government’s cross-appeal from Anderson's
resentencing following a third remand from this court. See United
States v. Anderson, 161 F. App’x 253 (4th Cir. 2006) (No. 04-4972);
United States v. Anderson, 48 F. App’x 450 (4th Cir. 2002) (No. 01-
4318(L)); United States v. Anderson, No. 98-4658, 2000 WL 620308(4th Cir. May 15, 2000) (unpublished).
In the appeal immediately preceding the current appeal,
we vacated Anderson’s sentence and remanded for resentencing in
light of Booker. Upon remand, the district court accepted the
government’s position that Anderson was responsible for sentencing
purposes for the previously determined drug quantities and,
therefore, his guideline range remained 262 to 327 months in
prison. However, the court was persuaded by defense counsel’s
arguments that Anderson should receive a sentence comparable to
those of his co-conspirators whose sentences ranged from seventy-
two months to 144 months in prison. The court decided to impose a
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variance sentence of 144 months and then justified the sentence
primarily based on the disparity between Anderson’s guideline range
and his co-conspirators’ sentences.* Anderson appealed and the
government cross-appealed.
Anderson contends that the district court erred by
finding drug quantity by a preponderance of the evidence. The
government argues that the downward variance sentence is
unreasonable.
We review the sentence imposed by the district court for
reasonableness. Booker, 543 U.S. at 261; United States v. Tucker,
473 F.3d 556, 560 (4th Cir. 2007). It is the district court’s
responsibility “to impose a sentence sufficient, but not greater
than necessary, to comply with the purposes of [18 U.S.C.A.]
§ 3553(a) [(West 2000 & Supp. 2007)].” Tucker, 473 F.3d at 561(internal quotation marks and citations omitted). If the appeals
court concludes that the sentence achieves this goal, the sentence
may be affirmed as reasonable. Id. To this end, the sentencing
court should calculate the guideline range and decide whether a
sentence within the range serves the factors set forth in
§ 3553(a). Id. at 560. If not, the court should first determine
whether a guideline departure is warranted. Id. If the court
*
Although counsel argued that Anderson’s age (fifty-one)
weighed in favor of the variance sentence and the court mentioned
Anderson’s rehabilitation (he had earned all possible good time
credits in prison), the record shows that the primary reason for
the variance was the disparity of the co-conspirators’ sentences.
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finds that a departure is unwarranted or the departure range is
still inadequate, the court may impose a variance sentence. Id. at
560-61. When reviewing a variance sentence, we consider “whether
the sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the extent
of the divergence from the sentencing range.” United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007) (citations
omitted).
Turning first to Anderson’s claim regarding drug
quantity, even after Booker, a court may properly make factual
findings concerning sentencing factors by a preponderance of the
evidence. United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005), cert. denied, 127 S. Ct. 121 (2006). We find that the
district court’s factual findings on the drug quantities
attributable to Anderson were not clearly erroneous. United States
v. Davenport, 445 F.3d 366, 370-71 (4th Cir. 2006) (providing
standard). Accordingly, we conclude that the district court
properly calculated Anderson’s guideline range.
We next address the reasonableness of the variance
sentence. A post-Booker sentence may be unreasonable for
procedural or substantive reasons.
A sentence may be procedurally unreasonable, for example,
if the district court provides an inadequate statement of
reasons or fails to make a necessary factual finding. A
sentence may be substantively unreasonable if the court
relies on an improper factor or rejects policies
articulated by Congress or the Sentencing Commission.
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United States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). In this case, we find the variance
sentence to be both procedurally and substantively unreasonable.
The district court primarily focused on the disparity
between Anderson’s sentence and those of his co-conspirators in
imposing the variance sentence. Before Booker, this court held
that mere disparity in sentencing among co-defendants was not a
permissible ground for departure under the sentencing guidelines.
United States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004); see also
United States v. Ellis, 975 F.2d 1061, 1066 (4th Cir. 1992) (absent
proof of prosecutorial misconduct, “a district court may not depart
downward based on the disparity of sentences among co-defendants.”)
Post-Booker, the now advisory guidelines are one factor considered
along with other sentencing factors set forth in 18 U.S.C.A.
§ 3553(a). Hughes, 401 F.3d at 546. One of the § 3553(a) factors
provides that a sentencing court shall consider “the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” 18
U.S.C.A. § 3553(a)(6). However, while it is not impermissible for
a court to consider co-defendants’ sentences in imposing a
sentence, the disparities to which § 3553(a)(6) refers are those
“unjustified difference[s] across judges (or districts) rather than
among defendants to a single case.” United States v. Pyles, 482
F.3d 282, 290 (4th Cir. 2007) (internal quotation marks and
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citations omitted), petition for cert. filed, ___ U.S.L.W. ___(U.S.
July 23, 2007) (No. 07-5497).
Anderson and his co-conspirators were not similarly
situated because the co-conspirators pled guilty and cooperated
with the government whereas Anderson has never admitted
responsibility and continues to protest his innocence. By granting
Anderson a variance sentence to give him a prison term commensurate
with those of his co-conspirators, the district court overlooked
the policy of Congress and the Sentencing Commission to treat
defendants who accept responsibility for their actions and who
cooperate with the government differently from those who do not.
United States v. Khan, 461 F.3d 477, 500-01 (4th Cir. 2006), cert.
denied, 127 S. Ct. 2428 (2007); accord United States v. Perez-Pena,
453 F.3d 236, 242 (4th Cir.) (in enacting 18 U.S.C.A. § 3553(e)
(West 2000 & Supp. 2007), Congress indicated its intention that
“sentencing disparities between defendants with similar criminal
conduct and records are warranted to the extent that the Government
determines that a particular defendant has advanced its interest in
prosecuting other offenders”), cert. denied, 127 S. Ct. 542 (2006).
We find that Anderson’s variance sentence, based primarily on
§ 3553(a)(6) without adequate consideration of the other sentencing
factors, is unreasonable. Moreland, 437 F.3d at 434.
For these reasons, we vacate Anderson’s sentence and
remand for further proceedings consistent with this opinion.
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Anderson moved to place these appeals in abeyance pending the
Supreme Court’s decisions in Rita v. United States, 127 S. Ct. 2456(2007), and Gall v. United States, petition for cert. granted, 127
S. Ct. 2933 (2007). We deny Anderson’s motion, in part because
Rita has been decided and therefore the abeyance motion is moot as
to this case, and in part because the issues likely to be addressed
in Gall are not dispositive of these appeals. 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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