United States v. Anderson , 340 F. App'x 869 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4539
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEVAN ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (4:97-cr-00034-FL-1)
Submitted: July 31, 2009 Decided: August 12, 2009
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary J. Darrow, Raleigh, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is before us for a fifth time on Jevan
Anderson’s appeal from resentencing following a fourth remand
from this court. Anderson was convicted in 1999 for conspiracy
to distribute and to possess with intent to distribute crack
cocaine, in violation of 21 U.S.C. § 846 (2006). 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),
and the United States Sentencing Commission amended the federal
sentencing guidelines for crack cocaine offenses, all of which
have impacted Anderson’s sentence.
Most recently, we found that the district court had
properly calculated Anderson’s guidelines range to be 262 to 327
months’ imprisonment based upon offense level thirty-six and
criminal history category IV. However, we vacated the 144-month
downward variance sentence imposed by the district court,
finding the sentence to be both procedurally and substantively
unreasonable. United States v. Anderson, 241 F. App’x 941 (4th
Cir. 2007) (Nos. 06-4725, 06-4849).
Upon remand, the district court rejected Anderson’s
request for a downward variance sentence. However, because of
the retroactive amendments to the federal sentencing guidelines
pertaining to crack cocaine offenses, which were promulgated
2
after our most recent remand, 1 the court found that Anderson was
eligible for a two-level reduction in offense level, resulting
in a guidelines range of 210 to 262 months’ imprisonment. 2
Anderson sought a downward variance sentence based on the
disparity between his sentence and those of his co-defendants,
new evidence he asserted established that his conviction and the
drug quantities attributed to him were based upon perjured
testimony, his advanced age, and his family circumstances.
Although the court declined to impose a variance sentence, the
court sentenced him to 210 months in prison, a sentence at the
bottom of the amended guidelines range, “because of the
circumstances presented here.”
Anderson timely appealed. Counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
identifying no meritorious grounds for appeal, but questioning
whether the district court’s failure to reimpose the previous
144-month variance sentence violated the doctrine of stare
decisis and whether Anderson’s sentence was reasonable.
1
See U.S. Sentencing Guidelines Manual § 2D1.1 (2007 &
Supp. 2008); USSG App. C., Amends. 706, 711, 715; USSG
§ 1B1.10(c), p.s. (2008).
2
The court applied the amended guidelines through an order
granting its sua sponte motion for sentence reduction pursuant
to 18 U.S.C. § 3582(c) (2006).
3
Anderson filed a pro se supplemental brief asserting additional
challenges to his sentence.
We turn first to Anderson’s claim that the district
court violated the doctrine of stare decisis by failing to
reimpose the earlier 144-month sentence. This doctrine of
precedent requires a court to follow earlier judicial rulings
when the same issues arise again. Here, the doctrine is
inapposite because we vacated the judgment imposing the 144-
month sentence, finding the downward variance sentence to be
both procedurally and substantively unreasonable.
Defense counsel also questions whether Anderson’s
sentence was reasonable under Booker and its progeny. We review
a sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, __, 128 S. Ct.
586, 597 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir. 2009). In so doing, we first examine the sentence
for “significant procedural error,” including: “failing to
calculate (or improperly calculating) the [g]uidelines range,
treating the [g]uidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence . . . .” Gall, 128 S. Ct. at 597.
We “then consider the substantive reasonableness of the sentence
imposed.” Id. If the sentence is within the guidelines range,
4
we apply a presumption of reasonableness. Rita v. United
States, 551 U.S. 338, __, 127 S. Ct. 2456, 2462-69 (2007)
(upholding presumption of reasonableness for within-guidelines
sentence).
In evaluating the sentencing court’s explanation of a
selected sentence, we have consistently held that, while a
district court must consider the statutory factors and explain
its sentence, it need not explicitly reference § 3553(a) or
discuss every factor on the record, particularly when the court
imposes a sentence within a properly calculated guidelines
range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006). At the same time, the district court “must make an
individualized assessment based on the facts presented.” Gall,
128 S. Ct. at 597. Moreover, the district court must state the
individualized reasons that justify a sentence, even when
sentencing a defendant within the guidelines range. Rita, 127
S. Ct. at 2468. While the individualized assessment of each
defendant need not be elaborate or lengthy, it must provide a
rationale tailored to the particular case at hand and be
adequate to permit appellate review. United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009). The reasons articulated by
the district court for a given sentence need not be “couched in
the precise language of § 3553(a),” so long as the “reasons can
be matched to a factor appropriate for consideration . . . and
5
[are] clearly tied [to the defendant’s] particular situation.”
United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). In
addition, where the parties present nonfrivolous reasons for
imposing a sentence outside the advisory guidelines range, the
district court should address the party’s arguments and explain
why they were rejected. Rita, 127 S. Ct. at 2468. We have
reviewed the record with these standards in mind and find
Anderson’s sentence to be procedurally and substantively
reasonable.
To the extent that counsel argues that Anderson’s
sentence fails to adequately reflect the crack cocaine/powder
cocaine sentencing disparity, her argument is meritless. The
crack cocaine guidelines amendments address the disparity
between sentences for crack offenses and powder cocaine offenses
and, as discussed above, we find that the district court
properly applied the amendments to reduce Anderson’s guidelines
range and, ultimately, his sentence.
In accordance with Anders, we have reviewed the record
for any meritorious issues for appeal and have found none. 3
Thus, we affirm the district court’s judgment. This court
requires that counsel inform her client, in writing, of his
3
We have reviewed the claims in Anderson’s pro se
supplemental brief and conclude that they are without merit.
6
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
the client. 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
7