United States v. James , 219 F. App'x 287 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4557
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBIELL DEANGELO JAMES,
Defendant - Appellant,
and
ACE BONDING,
Party in Interest.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Margaret B. Seymour, District
Judge. (6:03-cr-000148-MBS)
Submitted: January 31, 2007 Decided: March 5, 2007
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Beattie B. Ashmore, PRICE, PASCHAL & ASHMORE, P.A., Greenville,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Robiell Deangelo James pled guilty to possession of more
than five grams of crack with intent to distribute, 21 U.S.C.A.
§ 841 (West 1999 & Supp. 2006), and was sentenced to a term of 168
months imprisonment. On the same day as his guilty plea, James was
acquitted of violating 18 U.S.C.A. § 924(c) (West 2000 & Supp.
2006), in a bench trial. We affirmed James’ sentence, United
States v. James, 118 F. App’x 686 (4th Cir. 2004) (No. 03-4950),
but on rehearing we vacated the sentence and remanded for
resentencing consistent with United States v. Booker, 543 U.S. 220(2005). United States v. James, 132 F. App’x 436 (4th Cir. 2005)
(No. 03-4950). On remand, the district court again imposed a
sentence of 168 months imprisonment. James appeals the sentence,
again contending that the district court clearly erred in
determining that he was responsible, for sentencing purposes, for
213.45 grams of crack, an amount that gave him a base offense level
of 34. U.S. Sentencing Guidelines Manual § 2D1.1(c)(3) (2005)
(150-500 grams of crack). He also argues that his sentence is
unreasonable. We affirm.
When the facts are disputed, the district court’s
determination of the drug amount attributable to the defendant is
reviewed for clear error. United States v. Fullilove, 388 F.3d
104, 106 (4th Cir. 2004). James argues that the district court
failed to explain adequately how it arrived at 213.45 grams of
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crack at either sentencing hearing, that the evidence did not
support a finding that he was responsible for more than the
approximately 46 grams of crack he admitted distributing when he
entered his guilty plea, and that the court erred in converting
$3992 in cash found in his home to crack. We agree that the
district court’s method of calculating 213.45 grams was never made
clear on the record, and is not immediately evident from the
information before the court. We cannot say, however, that the
district court clearly erred in concluding that a base offense
level of 34 applied, because undisputed evidence before the court
supported a finding that James was responsible for distributing
more than 150 grams of crack.
First, James admitted that he distributed approximately
46 grams of crack to confidential informant Rosalia Choice on
September 18, 2002, in a recorded transaction. Second, in the same
recorded transaction, Choice paid James $600 in recorded funds for
crack he had previously fronted to her. Third, James stipulated at
his guilty plea hearing that $3992 which was seized in a search of
his house on September 18, 2002, was the proceeds of drug sales.
This amount included the $600 in recorded funds supplied to Choice
before the controlled transaction. If the whole $3992 is converted
to crack using the price of $1000 per ounce that the Drug
Enforcement Administration recommended to the probation officer,
and which James argues should have been used by the district court,
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the money converts to 113 grams of crack. This amount, added to
the 46 grams of crack James admitted selling at the Rule 11
hearing, produces a total of 159 grams of crack. James did not
dispute that, during the controlled transaction, he accepted $600
from Choice for crack previously fronted to her. Therefore, using
the most conservative calculation, and one which does not rely on
any unproven allegations made by Choice, we conclude that a base
offense level of 34 was properly applied.
James also maintains that his sentence is unreasonable.
We review a post-Booker sentence “to determine whether the sentence
is within the statutorily prescribed range and is reasonable.”
United States v. Moreland, 437 F.3d 424, 433 (4th Cir.) (internal
quotation marks and citation omitted), cert. denied, 126 S. Ct.
2054 (2006). “[A] sentence within the proper advisory Guidelines
range is presumptively reasonable.” United States v. Johnson, 445
F.3d 339, 341 (4th Cir. 2006) (citations omitted). “[A] defendant
can only rebut the presumption by demonstrating that the sentence
is unreasonable when measured against the [18 U.S.C.A.] § 3553(a)
[West 2000 & Supp. 2006)] factors.” United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal
quotation marks and citation omitted), petition for cert. filed, __
U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439).
A post-Booker sentence may be unreasonable for procedural
and substantive reasons. “A sentence may be procedurally
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unreasonable, for example, if the district court provides an
inadequate statement of reasons . . . . A sentence may be
substantively unreasonable if the court relies on an improper
factor or rejects policies articulated by Congress or the
Sentencing Commission.” Moreland, 437 F.3d at 434 (citations
omitted). “[A] district court’s explanation should provide some
indication (1) that the court considered the § 3553(a) factors with
respect to the particular defendant; and (2) that it has also
considered the potentially meritorious arguments raised by both
parties about sentencing.” Montes-Pineda, 445 F.3d at 380(citations omitted). “[I]n determining whether there has been an
adequate explanation, [this Court does] not evaluate a court’s
sentencing statements in a vacuum.” Id. at 381. Rather, “[t]he
context surrounding a district court’s explanation may imbue it
with enough content for [this Court] to evaluate both whether the
court considered the § 3553(a) factors and whether it did so
properly.” Id.
Here, the district court stated that it had considered
the § 3553(a) factors before the sentence was imposed. James
attempts to rebut the presumption of reasonableness by asserting
that the district court failed to “meaningfully” consider the
following § 3553(a) factors: (1) he had no prior offenses that were
counted in his criminal history; (2) he had a good record during
his incarceration and had completed numerous classes; (3) he had
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strong family ties; (4) he had accepted responsibility for the drug
offense; and (5) he had been acquitted of the firearm charge. We
conclude that none of these factors is sufficient to rebut the
presumption that his sentence is reasonable.
We therefore affirm the sentence imposed by the district
court. We grant James’ motion for leave to file a supplemental
brief, but find no merit in the issues he raises. 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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