United States v. Everhart

Vacated by Supreme Court, March 31, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4901
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY EUGENE EVERHART,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:03-cr-00034-1)
Submitted: July 31, 2007 Decided: August 21, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Eugene Everhart appeals the sentence imposed
following remand for resentencing. Initially, we affirmed
Everhart’s convictions,* but found Everhart’s Sixth Amendment
rights were violated in that he was sentenced pursuant to the then-
mandatory sentencing guidelines. See United States v. Everhart,
166 F. App’x 61 (4th Cir. 2006) (unpublished). Accordingly, we
vacated Everhart’s sentence and remanded case for resentencing in
accordance with United States v. Booker, 543 U.S. 220 (2005).
On remand, the district court utilized the same guideline
calculations that were applied at Everhart’s initial sentencing —
a total offense level of forty and a criminal history category
III — yielding a sentencing guideline range of 360 months to life
imprisonment. The district court sentenced Everhart to 360 months’
imprisonment. Everhart timely appealed.
On appeal, Everhart asserts errors related to the jury
instructions and the jury’s findings, and raises two issues related
to the reasonableness of his sentence. As an initial matter, we
conclude that the mandate rule precludes us from considering the
purported errors regarding the jury instructions and jury findings.
The mandate rule “forecloses relitigation of issues expressly or
*
Everhart was convicted of conspiracy to possess with intent
to distribute fifty grams or more of cocaine base, in violation of
21 U.S.C. §§ 841, 846 (2000), and two counts of possession with
intent to distribute fifty grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2000).
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impliedly decided by the appellate court.” United States v. Bell,
5 F.3d 64, 66 (4th Cir. 1993). We have already affirmed Everhart’s
convictions, and our remand order was expressly limited to
resentencing. See Everhart, 166 F. App’x at 63-64. Therefore,
these issues, which relate to the integrity of the jury’s verdict
and the legal sufficiency of the jury instructions, are outside the
scope of our mandate.
In challenging the reasonableness of his sentence,
Everhart first asserts that the district court “erroneously viewed
the low end of the guideline range as a mandatory minimum below
which [it] could not go without explicit on-the-record factual
justification.” Everhart maintains that this is tantamount to
treating the guidelines as mandatory. Thus, according to Everhart,
by increasing his sentence based on judicially determined facts not
alleged in the indictment or found by a jury beyond a reasonable
doubt, the district court violated his Sixth Amendment rights. At
the heart of Everhart’s argument is his contention that, because
the indictment only charged Everhart with offenses involving
“cocaine base,” the district court improperly engaged in judicial
fact-finding in determining that the substance involved was “crack”
cocaine, a fact neither charged in the indictment nor proven to the
jury beyond a reasonable doubt. Because the Government did not
explicitly prove that the substance was “crack” cocaine, Everhart
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argues, the district court should have sentenced Everhart pursuant
to the guideline for “cocaine.”
Everhart’s argument fails for several reasons. First,
Everhart’s assertion that the district court could not sentence
Everhart to a term of imprisonment outside the guidelines range
without express justification is an accurate statement of post-
Booker law. See United States v. Hernandez-Villanueva, 473 F.3d
118, 122-23 (4th Cir. 2007) (opining that a sentence outside the
advisory Guidelines range will be found unreasonable if the
sentencing court “provides an inadequate statement of reasons” for
the sentence); United States v. Khan, 461 F.3d 477, 499 (4th Cir.
2006) (“[T]he court must explain the reasoning behind any sentence,
particularly sentences that vary from the range recommended by the
Guidelines.”). Further, the distinction Everhart draws between
“crack” cocaine and cocaine base is entirely without merit. As
Everhart acknowledges in his appellate brief, we have concluded
that “cocaine base” and “crack cocaine” are interchangeable terms.
United States v. Ramos, 462 F.3d 329, 334 (4th Cir.), cert. denied,
127 S. Ct. 697 (2006). Finally, contrary to Everhart’s assertion
on this point, Booker does not preclude sentencing courts from
making factual determinations. In fact, district courts are
authorized and required to do so. See Rita v. United States, 127
S. Ct. 2456, 2465-66 (2000), (noting that the Supreme Court’s
“Sixth Amendment cases do not automatically forbid a sentencing
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court to take account of factual matters not determined by a jury
and to increase the sentence in consequence”); United States v.
Dalton, 477 F.3d 195, 197 (4th Cir. 2007).
Everhart next contends that the district court erred in
denying his motion for a variance sentence. Post-Booker, we will
affirm a sentence that is within the statutorily prescribed range
and is reasonable. United States v. Moreland, 437 F.3d 424, 433
(4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). “[A] sentence
within the proper advisory Guidelines range is presumptively
reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006). The Supreme Court recently upheld this presumption of
reasonableness. Rita, 127 S. Ct. at 2462-67.
Everhart’s 360-month sentence, which was within the
prescribed period and and the lowest sentence under the properly
calculated guidelines range, is presumptively reasonable and
Everhart offers no compelling argument to rebut this presumption.
Accordingly, we reject Everhart’s contention that the district
court erred in denying his request for a variance sentence.
Finally, Everhart argues that the 100-to-1 crack cocaine
to powder cocaine ratio proscribed in 21 U.S.C. § 841(b) (2000)
violates his equal protection rights. However, we have repeatedly
considered and rejected such an argument. See, e.g., United States
v. Ford, 88 F.3d 1350, 1365 (4th Cir. 1996); United States v.
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Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995); United States v.
D’Anjou, 16 F.3d 604, 612 (4th Cir. 1994).
For the foregoing reasons, we affirm the 360-month
sentence imposed by the district court on remand. 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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