United States v. Banks , 288 F. App'x 880 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5260
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN DONALD BANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00172-H)
Submitted: February 5, 2008 Decided: July 23, 2008
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed in part, vacated and remanded in part by unpublished per
curiam opinion.
John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alvin Donald Banks appeals his conviction and 120-month
sentence following his guilty plea to one count of possession of a
firearm after having been convicted of a crime punishable by more
than one year of imprisonment, in violation of 18 U.S.C. § 922(g)
(2000). We affirm Banks’s conviction but vacate his sentence and
remand for reconsideration.
In the presentence report (PSR), the probation officer
noted that Banks possessed the firearm and ammunition while also in
possession of crack cocaine, marijuana, digital scales, and drug
packaging materials. He therefore applied the cross-reference
provision of U.S. Sentencing Guidelines Manual (USSG)
§ 2K2.1(c)(1)(A) (2006), which resulted in the application of the
Guidelines for distribution or possession with intent to distribute
controlled substances, § 2D1.1. Banks objected to application of
the cross-reference to the drug Guidelines, arguing that this
increase in his offense level violated his due process and Eighth
Amendment rights. He also objected to the crack/powder cocaine
sentencing disparity in the Guidelines. The district court
overruled Banks’s objections and sentenced him to 120 months of
imprisonment, three years of supervised release, and a $100 special
assessment. Banks timely appealed.
Banks first argues that his guilty plea is invalid
because the magistrate judge lacked authority to take a guilty plea
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and because he did not validly consent to proceed before the
magistrate judge. We conclude that these arguments are without
merit. Banks asserts the magistrate judge did not have authority
to take a guilty plea on a felony indictment based on the local
rules for the District Court for the Eastern District of North
Carolina. Banks correctly notes the limitations in the local
rules, but overlooks a provision allowing a magistrate judge to
“perform any additional duty consistent with the Constitution and
laws of the United States.” E.D.N.C. Local Civ. R. 72.3(h)(16).
This language is consistent with the statutory language governing
the authority of magistrate judges. 28 U.S.C. § 636(b)(3) (2000).
This Court recognizes the authority of a magistrate judge to
conduct guilty plea proceedings, in part based on the language of
§ 636(b)(3). United States v. Osborne, 345 F.3d 281, 285 (4th Cir.
2003). The magistrate judge acted within his authority in
conducting the plea hearing.
Banks also asserts that he did not validly consent to
enter a guilty plea before a magistrate judge because the
magistrate judge did not adequately explain his right to proceed
before a district judge and the form he signed refers to an
arraignment rather than a guilty plea. Our review of the record
leads us to conclude that, although more specific advice and a form
specifically addressed to a guilty plea are desirable, in the
context of the entire hearing, Banks clearly understood the
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purposes of the hearing and validly consented to proceed before the
magistrate judge.
Banks next argues that his sentence violated his Fifth
and Sixth Amendment rights because it is based on conclusions by
the district court to apply the cross-reference to the drug
distribution or possession with intent to distribute Guideline,
which resulted in a sentence based on a crime other than the felon-
in-possession count to which he pleaded guilty. We review a
sentence imposed by the district court under an abuse-of-discretion
standard. Gall v. United States, 128 S. Ct. 586, 597 (2007). In
considering the district court’s application of the Guidelines, we
review factual findings for clear error and legal conclusions de
novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
In a related argument, Banks asserts that the court erred
in its fact-finding by applying the drug distribution Guideline
rather that the simple possession Guideline. Following United
States v. Booker, 543 U.S. 220 (2005), a sentencing court continues
to make factual findings concerning sentencing factors by a
preponderance of the evidence. United States v. Morris, 429 F.3d
65, 72 (4th Cir. 2005). In this case, the district court
specifically noted the advisory nature of the Guidelines and stated
that it had considered the sentencing factors in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007). The district court’s
application of the drug distribution cross-reference under the
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advisory Guidelines therefore did not violate Banks’s Fifth or
Sixth Amendment rights.
We also conclude that the district court correctly
applied the Guideline for drug distribution or possession with
intent to distribute, § 2D1.1. Banks not only possessed controlled
substances and was present in an apartment where evidence of drug
distribution was discovered, but he admitted flushing an ounce of
crack cocaine down the toilet as the officers arrived, thereby
attempting to conceal those drugs from the authorities. This court
has held repeatedly that possession with intent to distribute may
be inferred from the quantity of drugs possessed. United States v.
Bell, 954 F.2d 232, 235 (4th Cir. 1992) (“thirteen plus grams of
crack . . . is a ‘large quantity’, supporting the fact finder’s
inference that an intent to distribute existed.”).
Banks also asserts that his sentence is unconstitutional
based on the disparity between the Guidelines for crack and powder
cocaine. Counsel asserted an objection at sentencing on this
basis. Since the parties’ briefs were filed, the Supreme Court
decided, in Kimbrough v. United States, 128 S. Ct. 558 (2007), 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, even in a mine-run case.” Id. at
575. Kimbrough thus abrogated this Court’s decision in United
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States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006) (holding that
100:1 ratio cannot be the basis of a variance), vacated, __ S. Ct.
__, 2008 WL 59208 (U.S. Jan. 7, 2008) (No. 05-11659). In
determining Banks’s sentence, the district court did not have the
benefit of the Supreme Court’s recent decision in Kimbrough, and
the record is insufficient to determine whether the court would
have imposed a lower sentence upon consideration of that decision.
Finally, Banks asserts that the district court erred in
determining his sentence based on incorrect conclusions regarding
the number of children Banks had fathered and that he was subject
to an enhanced sentence as an armed career criminal. We need not
resolve these claims, as Banks may raise them before the district
court at the resentencing hearing.
Accordingly, we affirm Banks’s conviction, but vacate his
sentence and remand for reconsideration in light of Kimbrough. 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 IN PART;
VACATED AND REMANDED IN PART
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