United States v. McCullers , 395 F. App'x 975 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4437
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BILLY R. MCCULLERS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:07-cr-00049-RBS-JEB-1)
Submitted: August 30, 2010 Decided: September 17, 2010
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Cullen D. Seltzer, SELTZERGREENE, PLC, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Howard J. Zlotnick,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy R. McCullers, Jr., appeals from his conviction
and sentence imposed for multiple violations of drug trafficking
and firearms statutes, and witness tampering. On appeal,
McCullers challenges the Government’s use of its peremptory jury
strikes on African-Americans, the reasonableness of the
eighty-five year sentence imposed, the sentencing disparity for
crack cocaine, and whether he should have received consecutive
sentences for 18 U.S.C. § 924(c) (2006) violations. We conclude
there is no error and affirm the judgment.
McCullers contests the district court’s decision to
deny his challenge under Batson v. Kentucky, 476 U.S. 79 (1986).
The Equal Protection Clause forbids the use of a peremptory
challenge for a racially discriminatory purpose. Batson, 476
U.S. at 86. This court gives “great deference” to the trial
court’s finding “concerning whether a peremptory challenge was
exercised for a racially discriminatory reason.” Jones v.
Plaster, 57 F.3d 417, 421 (4th Cir. 1995). The finding is
reviewed for clear error. Id.In Hernandez v. New York, 500 U.S. 352 (1991), the
Supreme Court summarized the three-step process used to analyze
a Batson claim:
First, the defendant must make a prima facie showing
that the prosecutor has exercised peremptory
challenges on the basis of race. Second, if the
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requisite showing has been made, the burden shifts to
the prosecutor to articulate a race-neutral
explanation for striking the jurors in question.
Finally, the trial court must determine whether the
defendant has carried his burden of proving purposeful
discrimination.
Id. at 358-59 (internal citations omitted). The court added
that, in undertaking a Batson analysis:
the decisive question will be whether counsel’s race-
neutral explanation for a peremptory challenge should
be believed. There will seldom be much evidence
bearing on that issue, and the best evidence often
will be the demeanor of the attorney who exercises the
challenge. . . . [E]valuation of the prosecutor’s
state of mind based on demeanor and credibility lies
peculiarly within a trial judge’s province.
Id. at 365.
At the second step, “[u]nless a discriminatory intent
is inherent in the prosecutor’s explanation, the reason offered
will be deemed race-neutral.” Id. at 360. The proffered reason
for striking a juror “need not be worthy of belief or related to
the issues to be tried or to the prospective juror’s ability to
provide acceptable jury service.” Jones, 57 F.3d at 420. All
that is required is that the reason be race-neutral. See
Purkett v. Elem, 514 U.S. 765, 768 (1995). Both age and
occupation are legitimate, race-neutral reasons to strike.
United States v. Grimmond, 137 F.3d 823, 834 (4th Cir. 1998)
(age); Smulls v. Roper, 535 F.3d 853, 867 (8th Cir. 2008)
(occupation). Here, because the prosecutor provided
race-neutral explanations (age, occupation, and residence in a
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high drug activity zip code) for striking the three jurors in
question, the Government satisfied its burden at the second
step.
At the third step, the trial court’s duty is to
determine whether the Government’s race-neutral reason for a
strike is “a pretext for discrimination.” United States v.
Farrior, 535 F.3d 210, 221 (4th Cir. 2008). The defendant must
“show both that [the Government’s stated reasons for a strike]
were merely pretextual and that race was the real reason for the
strike.” United States v. McMillon, 14 F.3d 948, 953 (4th Cir.
1994). At this step, the “‘defendant may rely on all relevant
circumstances to raise an inference of purposeful
discrimination.’” Golphin v. Branker, 519 F.3d 168, 179 (4th
Cir. 2008) (quoting Miller-El v. Dretke, 545 U.S. 231, 240
(2005)). The defendant need not “point to an identical juror of
another race who was not peremptorily challenged.” Golphin, 519
F.3d at 179. Rather, “direct comparisons between similarly
situated venire-persons of different races” are probative. Id.
at 179-80 (internal quotation marks omitted).
In this case, McCullers — an African-American male —
objected to the striking of three of the eight African-Americans
on the venire panel. The district court properly credited the
Government’s reasons as legitimate and nondiscriminatory, and
McCullers failed in his burden to prove intentional
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discrimination. Therefore the district court did not clearly
err in denying McCullers’ Batson challenge.
McCullers argues that his sentence was excessive under
18 U.S.C. § 3553(a) (2006). McCullers received an 85-year
sentence, with the statutory minimum sentence being 65 years.
McCullers argues that even the 65-year sentence, consisting of
all statutory minimum sentences, which includes ten years for
count one, would in effect be a life sentence because he was 31
years old at sentencing and had a remaining life expectancy of
42 to 45 years. We review a sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Id. Procedural reasonableness is
determined by reviewing whether the district court properly
calculated the defendant’s advisory Guidelines range and then
considered the 18 U.S.C. § 3553(a) factors, analyzed any
arguments presented by the parties, and sufficiently explained
the selected sentence. Id. at 49-51. “Regardless of whether
the district court imposes an above, below, or within-Guidelines
sentence, it must place on the record an ‘individualized
assessment’ based on the particular facts of the case before
it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009). Substantive reasonableness of the sentence is determined
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by “taking into account the ‘totality of the circumstances,
including the extent of any variance from the Guidelines
range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (quoting Gall, 552 U.S. at 51).
What McCullers essentially seeks is a downward
variance so that, with the additional consecutive sentences, the
total sentence is not so onerous. However, under § 924(c), a
defendant is first sentenced for the underlying drug trafficking
offense, without consideration for the applicable consecutive
sentences related to the firearm violations. A court may not
effectively convert these sentences into concurrent sentences by
shrinking the sentence that it would otherwise impose for the
predicate offenses for the § 924(c) violation. See United
States v. Chavez, 549 F.3d 119 (2d Cir. 2008).
Here, the district court correctly calculated the
sentence and there is no procedural error. The court was aware
of its discretion to vary downward and chose not to do so.
McCullers’ main objection is that a sixty-five-year sentence
would in effect be a life sentence, statistically speaking; and
that, therefore, the eighty-five-year sentence imposed is
greater than necessary under the requirements of § 3553(a). In
determining that a 360-month sentence on several of the
concurrent drug counts, in addition to the mandatory consecutive
statutory sentences, was appropriate, the district court
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considered the § 3553(a) factors, explicitly noting that the
facts and circumstances of the conspiracy offense “weigh[]
heavily against [McCullers] because of the length of the
conspiracy, the amount of drugs that were involved, and all of
the matters,” and adopted the facts in the PSR. The court also
noted that McCullers was “hanging around and involving [him]self
in a drug conspiracy with some pretty rough characters.” The
court further noted the three separate firearm offenses
involving three different years, establishing a continued use of
guns and the seriousness of that conduct. The court credited
that McCullers was only in criminal history category II.
However, the court found that McCullers’ conduct had not
previously promoted respect for the law and that the court
considered the need for deterrence of continued criminal conduct
and the need to protect the public from future crimes by
McCullers. Finally, in imposing the sentence, the court found
that the sentence on each count was sufficient but not greater
than necessary to comply with the purposes of § 3553(a).
Moreover, McCullers’ within-Guidelines sentence is presumptively
reasonable on appeal, and McCullers 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
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§ 3553(a) factors). Thus, we conclude that the district court
did not abuse its discretion in imposing the chosen sentence.
McCullers argues that sentencing based on a
discrepancy between crack and powder cocaine violates the Equal
Protection Clause. McCullers correctly contends that under
Kimbrough v. United States, 552 U.S. 85 (2007), district courts
do not have to adhere to the 100-to-1 sentencing ratio creating
the crack/powder cocaine disparity. McCullers also notes the
Sentencing Commission is advocating for eliminating or at least
reducing the 100-to-1 ratio and that the Department of Justice
has called for eliminating the sentencing disparity between
crack cocaine and powder cocaine. In addition, McCullers points
to a bill pending in Congress that would remove references from
the United States Code to cocaine base, thus eliminating the
sentencing disparity.
According to McCullers, any sentence that was based
upon something greater than a one-to-one ratio for crack and
powder cocaine would be unfair and unreasonable. McCullers
fails to cite any controlling opinion or statute that required
the district court to apply the one-to-one to ratio.
In Spears v. United States, 129 S. Ct. 840 (2009), the
Supreme Court acknowledged that Kimbrough stood for the
proposition that sentencing courts have the “authority to vary
from the crack cocaine Guidelines based on policy disagreement
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with them, and not simply based on an individualized
determination that they yield an excessive sentence in a
particular case.” Spears, 129 S. Ct. at 843. In Spears, the
Supreme Court approved of the sentencing court’s decision to
apply a twenty-to-one ratio when imposing a sentence in a
typical crack cocaine case. Id. at 844. However, it is one
thing to say that a district court may vary from a Guideline on
policy grounds; it is quite a leap, however, to hold that it
must. See Spears, 129 S. Ct. at 844 (holding “we now clarify
that district courts are entitled to reject and vary
categorically from the crack-cocaine Guidelines based on a
policy disagreement with those Guidelines”).
Here, the district court clearly understood it had the
authority to vary below the Guidelines based on a consideration
of something less than the current sentencing disparity between
crack and powder cocaine. It properly calculated the Guidelines
using the current base offense level for the quantity of crack
cocaine for which McCullers was held responsible.
Finally, McCullers asserts error relative to his
sentence because his three § 924(c) convictions were returned in
the same proceeding and were therefore allegedly intertwined.
He therefore claims that he cannot be subjected to the 25-year
statutory minimum sentence for a “second or successive”
conviction. Under § 924(c), a five-year sentence, consecutive
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to the predicate felony, is imposed for the first such
conviction and a twenty-five year sentence is imposed for each
subsequent conviction. McCullers’ claim is foreclosed by
Deal v. United States, 508 U.S. 129, 137 (1993). Such is the
case even where the prior offenses giving rise to the
enhancement are all tried during a single proceeding. Id. at
137. In addition, the conduct for each of the three § 924(c)
convictions took place in three separate years and each was tied
to a separate drug trafficking count as a predicate felony.
Therefore, McCullers’ claim fails.
Accordingly, we affirm the judgment. 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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