United States v. Spivey , 239 F. App'x 795 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4655
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REGINALD LARUE SPIVEY, a/k/a Buddy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (7:03-cr-00023-H)
Submitted: May 18, 2007 Decided: July 9, 2007
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joel Merritt Wagoner, WAGONER LAW FIRM, Wilmington, 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Unpublished opinions are not binding precedent in this circuit.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:
Reginald Larue Spivey was convicted by a jury of
conspiracy to distribute and possess with intent to distribute at
least 50 grams of cocaine base and at least five kilograms of
cocaine, in violation of 21 U.S.C. § 846 (Count 1); distribution of
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 2);
possession with intent to distribute at least 50 grams of cocaine
base and 500 grams of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (Count 3); and possession of firearms in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(2)
(Count 4). The district court sentenced Spivey to an aggregate of
420 months of imprisonment under the then-mandatory federal
sentencing guidelines.
We previously affirmed Spivey’s conviction, but vacated
his sentence, and remanded for resentencing in accordance with
United States v. Booker, 543 U.S. 220 (2005), and United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005). At resentencing, the
district court sentenced Spivey to concurrent 360-month terms of
imprisonment on Counts 1, 2, and 3, and a consecutive 60-month term
of imprisonment on Count 4, for an aggregate 420-month term of
imprisonment, the same sentence imposed originally. Spivey again
appeals, contending that his sentence is unreasonable based upon
the district court’s failure to enunciate which particular 18
U.S.C. § 3553(a) (West 2000 & Supp. 2006), factors it considered in
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imposing sentence. He also challenges this Circuit’s post-Booker
standard of review, asserting that the use of the rebuttable
presumption of reasonableness in review of sentences that are
within the advisory guideline range is a Sixth Amendment violation.
We affirm.
As a preliminary matter, Spivey does not challenge the
calculation of his advisory guidelines sentencing range. Rather,
he asserts his sentence is unreasonable. We have repeatedly held
that a sentence imposed within a properly calculated guideline
range is presumed to be reasonable. See, e.g., United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006), petition for
cert. filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439);
United States v. Johnson, 445 F.3d 339, 341-42 (4th Cir. 2006);
United States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006); United States v. Green, 436 F.3d
449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Spivey’s contention that a within-guideline sentence is not
entitled to a presumption of reasonableness is unavailing because
a panel may not overrule another panel. United States v. Chong,
285 F.3d 343, 346 (4th Cir. 2002).* Given that Spivey does not
challenge the advisory guideline range in his case, coupled with
his failure to provide evidence to overcome the presumption of
*
To the extent Spivey is objecting to this court’s review
standards, such a challenge appropriately is made to the United
States Supreme Court.
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reasonableness we accord such a sentence, we reject Spivey’s claim
of unreasonableness.
Moreover, while the district court did not enunciate each
§ 3553(a) factor it considered prior to imposing sentence on
Spivey, the court did specifically refer to Booker and to the
§ 3553(a) factors at the resentencing hearing, stating that it
specifically considered those factors. It adopted the findings in
the presentence report, stating that they were credible and
reliable, and it stated that in addition to the § 3553(a) factors,
the court considered the guidelines range and other relevant
guideline factors. The court was familiar with Spivey’s history
and background, having presided over his trial. Also, the court
had sentenced Spivey originally and was familiar with the details
of Spivey’s case from the initial sentencing hearing. Spivey’s
presentence report outlined his offense conduct and his criminal
history. Finally, Spivey took the opportunity to argue at length
about the strength of the evidence against him during the
resentencing hearing, providing additional information about the
nature and circumstances of his offense prior to the district
court’s imposition of sentence.
The sentencing court “need not explicitly discuss every
§ 3553(a) factor on the record . . . particularly . . . when the
district court imposes a sentence within the applicable Guidelines
range.” Johnson, 445 F.3d at 345 (internal quotations and
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citations omitted). Rather, we can evaluate whether the court
considered the § 3553(a) factors and whether it did so properly
based on the context surrounding a district court’s explanation.
See Montes-Pineda, 445 F.3d at 381. We find that the district
court here fully complied with the mandates of Booker and Hughes,
and that Spivey’s sentence was reasonable and not in violation of
his Sixth Amendment rights.
Accordingly, we affirm Spivey’s sentence. Given that
Spivey is represented by counsel, we deny his motion to file a
supplemental pro se brief. 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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