United States v. Brown ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5257
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYVON GREGORY BROWN, a/k/a Ray-Ray,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:06-cr-00029-GEC-JGW-1)
Submitted: January 28, 2010 Decided: February 11, 2010
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Andrea Lantz Harris,
Assistant Federal Public Defender, Charlottesville, Virginia,
for Appellant. Julia C. Dudley, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rayvon Gregory Brown pled guilty to conspiracy to
distribute and possess with intent to distribute more than fifty
grams of cocaine base, in violation of 21 U.S.C.A.
§§ 841(b)(1)(A), 846 (West 1999 & Supp. 2009); four counts of
distribution or possession with intent to distribute cocaine
base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West
1999 & Supp. 2009); and two counts of distribution or possession
with intent to distribute more than five grams of cocaine base,
in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(B) (West 1999 &
Supp. 2009). He previously appealed his 324-month sentence, and
we remanded his case for resentencing in light of Kimbrough v.
United States, 552 U.S. 85 (2007). 1 On remand, the district
court reduced Brown’s sentence to 235 months’ imprisonment. 2
Brown argues on appeal that his sentence is unreasonable because
the district court refused to consider the crack/powder
disparity in the sentencing guidelines despite this court’s
1
In Kimbrough, the Supreme Court held that “it would not be
an abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder
disparity yields a sentence ‘greater than necessary’ to achieve
§ 3553(a)’s purposes . . . .” 552 U.S. at 110.
2
While Brown’s first appeal was pending, the district court
reduced Brown’s sentence to 262 months’ imprisonment based on
the amended guidelines for crack cocaine offenses.
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instructions on remand to explicitly consider Kimbrough.
Finding no reversible error, we affirm.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Layton, 564 F.3d 330, 335 (4th Cir.
2009). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Gall,
552 U.S. at 51. After determining whether the district court
properly calculated the defendant’s advisory guideline range, we
consider whether the district court considered the § 3553(a)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Id.; see United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding
that, while the “individualized assessment need not be elaborate
or lengthy, . . . it must provide a rationale tailored to the
particular case . . . and [be] adequate to permit meaningful
appellate review”) (internal quotations omitted). Finally, we
review the substantive reasonableness of the sentence, “taking
into account the totality of the circumstances.” United States
v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This court
presumes on appeal that a sentence within a properly calculated
advisory guidelines range is reasonable. Rita v. United States,
551 U.S. 338, 347 (2007) (upholding presumption of
reasonableness for within-guidelines sentence).
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We conclude that Brown’s sentence is both procedurally
and substantively reasonable. Brown’s argument that the
district court failed to consider a variant sentence under
Kimbrough is without merit. On remand, defense counsel clearly
argued for a further reduction to Brown’s sentence in light of
Kimbrough. The district court understood this court’s remand
and the discretion it was afforded to consider the crack/powder
disparity and to further reduce Brown’s sentence. However,
after hearing the parties’ arguments and in considering the
§ 3553(a) factors, the court explicitly found that the
crack/powder disparity did not justify a further variance from
the guidelines range. Nevertheless, the district court reduced
Brown’s sentence based on other considerations. Brown’s within-
guidelines sentence is presumptively reasonable on appeal, and
Brown has not rebutted that presumption. See United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (stating
presumption may be rebutted by showing sentence is unreasonable
when measured against the § 3553(a) factors). Thus, the
district court did not abuse its discretion in imposing the
chosen sentence.
Accordingly, we affirm Brown’s sentence and deny his
motion to remand in full. We dispense with oral argument
because the facts and legal contentions are adequately presented
4
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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