UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4864
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALTER ANTHONY WEST,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:02-cr-00004-7)
Submitted: May 30, 2007 Decided: July 10, 2007
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Andrew Jennings, LAW OFFICE OF W. ANDREW JENNINGS, Hickory,
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Unpublished opinions are not binding precedent in this circuit.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:
In 2002, Walter Anthony West was convicted of
participating with six co-defendants in a conspiracy to distribute
fifty grams or more of methamphetamine. West was sentenced to 240
months imprisonment after the district court found him responsible
for fifty grams or more of actual methamphetamine, which yielded a
base offense level of 32 under U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(4) (2001). With increases for discharge of hazardous
substances, USSG § 2D1.1(b)(5)(A), and a managerial role, USSG
§ 3B1.1(b), the initial guideline range was 235-293 months. We
affirmed the conviction and sentence, United States v. West, 98 F.
App’x 259 (4th Cir. 2004), but after its decision in United
States v. Booker, 543 U.S. 220 (2005), the Supreme Court granted
certiorari and remanded West’s case. We vacated his sentence and
remanded his case for resentencing consistent with Booker, noting
that the district court’s factual findings concerning the drug
quantity resulted in Sixth Amendment error under the mandatory
guideline scheme in use at West’s first sentencing. United
States v. West, 178 F. App’x 320 (4th Cir. 2006). On remand, the
district court made the same findings, but imposed a sentence of
168 months. The lower sentence resulted from the district court’s
mistaken belief that it could not make factual findings by a
preponderance of the evidence concerning the drug amount under an
advisory guideline scheme. West appeals his sentence. We affirm.
- 2 -
We first find no Sixth Amendment error in the sentence
imposed on remand. West was sentenced under an advisory guideline
scheme. Consequently, the district court did not violate the Sixth
Amendment by making factual findings concerning West’s role and
discharge of hazardous substances by a preponderance of the
evidence. United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005), cert. denied, 127 S. Ct. 121 (2006).
As in the first appeal, we conclude that the district
court did not clearly err in applying an enhancement for “unlawful
discharge, emission, or release of a hazardous or toxic substance.”
We also conclude that the record supports the district court’s
application on remand of a four-level adjustment for having a
leader or organizer role in the offense. The district court
applied a three-level adjustment for a manager or supervisor role
at the first sentencing, and did not explain its change of heart at
the resentencing hearing. However, we may affirm a sentence
enhancement for any reason appearing in the record. United
States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001) (appeals court
may “affirm [sentence enhancement] on the basis of ‘any conduct [in
the record] that independently and properly should result in an
increase in the offense level’ by virtue of the enhancement”
(quoting United States v. Ashers, 968 F.2d 411, 414 (4th Cir.
1992)). West correctly argues that he and his co-defendants were
a loosely associated group of methamphetamine users and sellers.
- 3 -
However, West not only used and distributed methamphetamine, but
also manufactured it and taught two of his co-defendants to make
it. He was thus, at least for a time, the organizer and leader of
this group’s methamphetamine trafficking.
West contends that the district court’s “third
alternative sentence” of 240 months violated the Sixth Amendment
and this court’s decision in his first appeal. This claim is
meritless. The district court did not reimpose the original
240-month sentence, although the court expressed its desire to do
so and had the authority to do so under the post-Booker advisory
guideline scheme after making its factual findings. The judgment
order imposes a sentence of 168 months, and the government has not
appealed the lower sentence.
Finally, West contends that his sentence is procedurally
and substantively unreasonable. Because West was sentenced within
the guideline range, his sentence is presumptively reasonable.
United States v. Johnson, 445 F.3d 339, 344 (4th Cir. 2006).
West argues that his sentence is procedurally
unreasonable because the district court failed to address two
factors raised by his attorney under 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007), his good record in prison and his support from
his family and employer. In announcing the sentence, the district
court did not specifically address the information put forward by
counsel, but the court did address West’s conduct in the offense
- 4 -
and his criminal history to explain its decision to sentence West
at the high end of the advisory guideline range. While the court
is required to explain the sentence, see United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006), petition for
cert. filed, July 21, 2006 (No. 05-4471), it is not required to
discuss each § 3553(a) factor. Johnson, 445 F.3d at 345. We are
satisfied that the district court sufficiently addressed West’s
history and characteristics.
West argues that his sentence is substantively
unreasonable because he is in a statistical group with a low rate
of recidivism. This is an argument with the structure of the
guidelines, which this court is not in a position to remedy. See
Johnson, 445 F.3d at 344 (defendant’s contention that guideline
provision “is unreasonable or unfair as a general matter” should be
raised with Congress or Sentencing Commission).
We therefore affirm the sentence imposed by the district
court. 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
- 5 -