United States v. Myers ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4619
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TODD LAMEL MYERS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-00746-TLW-3)
Submitted: July 26, 2010 Decided: August 17, 2010
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant. Kevin F.
McDonald, Acting United States Attorney, Columbia, South
Carolina, A. Bradley Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Todd Lamel Myers appeals his within-guidelines
sentence following a guilty plea to conspiracy to distribute
cocaine base in violation of 21 U.S.C. § 846 (2006). We affirm.
This court reviews within-guidelines sentences under
a “deferential abuse-of discretion standard,” and only reverses
errors that are “significant.” United States v.
Mendoza-Mendoza, 597 F.3d 212, 219 (4th Cir. 2010) (citing
Gall v. United States, 552 U.S. 38, 51-52 (2007)). This
standard of review applies to alleged Rita * errors with the same
force that it applies to “all other[]” perceived errors. Id.Moreover, this court applies a presumption of reasonableness to
within-guidelines sentences. E.g., United States v. Go, 571
F.3d 216, 218 (4th Cir. 2008).
District courts do not, however, apply the same
presumption of reasonableness to the sentencing guidelines.
Mendoza-Mendoza, 597 F.3d at 216-17 (citations omitted).
Instead, they must make an “individualized assessment” for each
defendant. Id. (Significantly less explanation is required for
a within-guidelines sentence than for one outside the advisory
range). Myers alleges that the district court committed a
procedural Rita error by applying an “implicit” or “de facto”
*
See Rita v. United States, 551 U.S. 338, 351 (2007).
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presumption in favor of a guideline sentence. In support of his
argument, he cites to the district court’s statement that the
advisory guidelines “provide a reasonable basis” for imposing a
sentence.
This court addressed in Mendoza-Mendoza the
appropriate touchstone for evaluating the sort of “Rita
presumption” that Myers asserts occurred here. 597 F.3d at
216-20. In that case, we stated that “[i]f the sentencing court
did what it was supposed to do – hearing out both sides and
making an individualized assessment in light of § 3553(a) – then
it should be protected from claims of having applied a Rita
presumption.” Id. at 218. Here, Myers has not argued that he
was denied an opportunity to be heard or that the court failed
to individually assess him at sentencing. Accord Edwards v.
City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)
(failure to specifically raise an issue in an opening brief
results in abandonment of that issue).
Moreover, after independently reviewing the record, it
is clear that the district court: (1) paid attention to Myers’
arguments; (2) was familiar with the cases counsel cited,
including Rita; (3) considered itself to be the ultimate
authority in deciding Myers’ sentence; (4) considered the §
3553(a) factors to be of the utmost importance in deciding
Myers’ sentence; and (5) considered the advisory guidelines to
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be secondary factors. Further, when confronted with additional
arguments why Myers should be sentenced to a below-guidelines
sentence (i.e., his criminal history was relatively “minor,” and
a long sentence would devastate his family), the district court
responded directly to each claim and adequately addressed them.
We conclude that the record, taken as a whole,
indicates that the district court sentenced Myers to a within-
guidelines sentence as a matter of judgment, not because it
believed it was required to do so or because it believed the
guidelines were presumptively correct. Myers has thus failed to
show a procedural Rita error. Compare Mendoza-Mendoza, 597 F.3d
at 219-20 (vacating sentence where district court stated that it
“did not agree” with the guidelines, and that it was “obligated”
to sentence defendant within them unless it could find a
compelling reason to divert from them).
Myers’ argument that his “crack” sentence is
substantively unreasonable is likewise without merit. In his
brief, Myers argues simply that “any sentence treating crack
[cocaine] more punitively than powder [cocaine]” is inherently
unreasonable and unfair. He states that any crack sentence
“based on a ratio other than 1 to 1,” vis a vis powder cocaine
is substantively unreasonable. However, Myers has not cited any
case or authority that accepts his policy-driven arguments.
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This court has repeatedly rejected claims, such as
those made by Myers, that the sentencing disparity between
powder cocaine and crack offenses violates either the Equal
Protection Clause or a defendant’s due process rights. See,
e.g., United States v. Perkins, 108 F.3d 512, 518-19 & n.34
(4th Cir. 1997); United States v. Burgos, 94 F.3d 849, 876-77
(4th Cir. 1996) (en banc). To the extent that Myers seeks to
have us reconsider these decisions, a panel of this court cannot
overrule the decision of a prior panel. See United States v.
Simms, 441 F.3d 313, 318 (4th Cir. 2006). Moreover,
Kimbrough v. United States, the case upon which Myers primarily
relies, did not overturn these precedents. See 552 U.S. 85, 107
(2007) (sentencing courts are bound by the disparate statutory
terms of imprisonment for powder cocaine and cocaine base,
notwithstanding district court’s discretion to depart from
advisory Sentencing Guidelines ranges based on the disparity).
Accordingly, we affirm the district court’s 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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