United States v. Mead , 281 F. App'x 208 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARBARA MEAD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:06-cr-00315-MBS-3)
Submitted: May 28, 2008 Decided: June 16, 2008
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. Kevin F. McDonald, Acting United States
Attorney, James C. Leventis, Jr., Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barbara Mead pled guilty to conspiracy to manufacture,
possess with intent to distribute, and to distribute 50 grams or
more of a mixture or substance containing methamphetamine, 21
U.S.C.A. §§ 841(a)(1), (b)(1)(A), 846 (West 1999 & Supp. 2007), and
manufacturing and attempting to manufacture methamphetamine, which
created a substantial risk to human life, 21 U.S.C. § 858 (2000).
The district court sentenced her to 235 months of imprisonment.
She appeals her sentence, contending that it is unreasonable.
Finding that the district court did not abuse its discretion in
determining and imposing Mead’s sentence, we affirm.
While released on bond pending sentencing, Mead absconded
to Nevada and, while there, was charged with first degree murder.
She pled guilty to accessory to first degree murder and was
sentenced to 24 to 60 months’ imprisonment based on her conduct of
aiding the principal in the concealment of the body of Cynthia
Delgado so that it would not be discovered. Also, while on
release, Mead tested positive for marijuana and methamphetamine,
she did not follow up with the drug treatment that was ordered as
a condition of her release, and she moved to Nevada without
notifying the Probation Office of her new address.
At sentencing, Mead objected to the probation officer’s
recommendation that she not be given a reduction for acceptance of
responsibility and that her criminal history category was II,
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resulting in an advisory guideline range of 235 to 293 months. The
district court overruled her objections, considered the relevant
sentencing factors in 18 U.S.C. § 3553(a) (West 2000 & Supp. 2007),
and determined that a sentence of 235 months was appropriate. On
appeal, Mead contends that the sentence was unreasonable in light
of her personal circumstances and when compared to the 108-month
sentence her co-defendant received.
Appellate courts review sentences imposed by district
courts for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 128 S. Ct. 586, 597-98 (2007);
United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007).
When sentencing a defendant, a district court must: (1) properly
calculate the guideline range; (2) determine whether a sentence
within that range serves the factors set out in § 3553(a);
(3) implement mandatory statutory limitations; and (4) explain its
reasons for selecting a sentence. Pauley, 511 F.3d at 473. In the
Fourth Circuit, “[a] sentence within the proper Sentencing
Guidelines range is presumptively reasonable.” United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United
States, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-guidelines sentence). This presumption
can be rebutted only by showing that the sentence is unreasonable
when measured against the § 3553(a) factors. United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).
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The district court properly calculated Mead’s advisory
guideline range at 235 to 293 months. The court also properly
declined to reduce her sentence based on acceptance of
responsibility. Among the factors considered in determining
whether a defendant has accepted responsibility are whether the
defendant has voluntarily withdrawn from criminal conduct or
associations and her post offense rehabilitation efforts. USSG
§ 3E1.1, comment. (n.1(b), (g)).1 Here, although Mead pled guilty
and cooperated with officials, she continued to use drugs, she
failed to comply with the drug treatment that was ordered as a
condition of her release, she left the state without notifying the
probation officer, and she was engaged in further criminal conduct
resulting in her conviction for being an accessory after the fact
to murder. The district court’s determination that Mead did not
warrant the acceptance of responsibility reduction is entitled to
great deference, see USSG § 3E1.1, comment. (n.5); United States v.
Dugger, 485 F.3d 236, 239 (4th Cir. 2007), and Mead failed to meet
her burden of showing that this reduction was warranted. USSG
§ 3E1.1(a); see United States v. Underwood, 970 F.2d 1336, 1339
(4th Cir. 1992) (upholding denial of reduction where defendant
continued to use drugs after entering guilty plea).
1
U.S. Sentencing Guidelines Manual § 3E1.1, comment. (n.5)
(2006).
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Mead also asserts that her sentence is unreasonable
because it is disproportionately greater than the sentences of her
co-defendants--one of whom was more culpable in the offense than
she. As Mead acknowledges, this court is not required to consider
sentences of co-defendants when imposing sentence. United
States v. Foutz, 865 F.2d 617, 621 (4th Cir. 1989). Rather,
defendants may be sentenced differently for the same offense.
United States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004).
Moreover, while Mead’s co-defendant was comparably
culpable with Mead in the instant offense, the co-defendant was a
first-time offender. Mead, however, because of her conviction for
accessory to murder, had a prior sentence,2 and therefore a higher
criminal history score and a higher criminal history category than
her co-defendant, and a resultant higher advisory guideline range.
We find that the district court did not abuse its discretion in
declining to impose a variance sentence on Mead based on the
sentences received by her co-defendants.
After determining the advisory guideline range, the
district court considered the relevant sentencing factors in
§ 3553(a), and determined that a sentence within the range served
2
Although the offense conduct related to the accessory to
murder charge occurred after the offense conduct underlying the
methamphetamine convictions, Mead was sentenced on the accessory to
murder charge prior to her sentencing on the methamphetamine
charges and therefore the state sentence counted as a “prior
sentence” for purposes of determining her criminal history score.
See USSG §§ 4A1.1(a), 4A1.2 & comment. (n.1).
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those factors. The district court then imposed a 235-month
sentence, at the lowest end of the advisory guideline range, and
well below the 40-year statutory maximum. See 21 U.S.C.A.
§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2007). We find that this
sentence is reasonable. See Allen, 491 F.3d at 193; see also Rita,
127 S. Ct. at 2462-69.
Accordingly, we affirm Mead’s sentence. We dispense with
oral argument because the facts and legal contentions are
adequately addressed in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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