UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4437
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VINCENT CARNELIUS EURA,
Defendant - Appellant.
No. 05-4533
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
VINCENT CARNELIUS EURA,
Defendant - Appellee.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 05-11659)
Submitted: February 12, 2008 Decided: March 4, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Craig Weston Sampson, Richmond, Virginia, for Appellant/Cross-
Appellee. Paul J. McNulty, United States Attorney, Michael James
Elston, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee/Cross-
Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This case is before us on remand from the United States
Supreme Court. The issue presented is whether the district court
abused its discretion when it imposed an eighteen-month downward
variance sentence on Eura’s conviction for possession with intent
to distribute five grams or more of cocaine base (crack), 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B). Finding no abuse of discretion, we
affirm the district court’s judgment.
I
On July 19, 2004, Eura was charged in a three-count second
superseding indictment with conspiring to possess with intent to
distribute fifty grams or more of crack, id. §§ 841(b)(1)(A) and
846 (Count One), possession with intent to distribute five grams or
more of crack, id. §§ 841(a)(1) and (b)(1)(B) (Count Two), and
possession of a firearm in furtherance of a drug trafficking crime,
18 U.S.C. § 924(c) (Count Three). Following a jury trial, Eura was
convicted on Counts Two and Three, but acquitted on Count One. The
jury found that Eura’s conviction on Count Two involved between
five and twenty grams of crack.
In preparation for sentencing, a Presentence Investigation
Report was prepared by a probation officer, using the November 2004
version of the United States Sentencing Guidelines. See United
States Sentencing Commission, Guidelines Manual, (USSG) (Nov.
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2004). The probation officer concluded that Eura’s offense level
on Count Two was 28, resulting in a Guidelines range of 78 to 97
months’ imprisonment.1
At the sentencing hearing on April 15, 2005, the district
court noted that the Guidelines range for Count Two under the
Guidelines was 78 to 97 months. The district court further noted
that there was a sixty-month mandatory minimum sentence on Count
Two and a mandatory sixty-month consecutive sentence on Count
Three.
The district court then noted that Eura’s sentence needed to
“reflect the seriousness of the offense, to promote respect for law
and to provide just punishment, to afford adequate deterrence to
criminal conduct, to protect the public from further crimes of the
defendant, and provide the defendant with any corrective
treatment.” (J.A. 328). The district court also noted that it
must consider pertinent policy statements by the Sentencing
Commission. The district court summarized the Sentencing
1
The probation officer noted that the jury found that Eura’s
offense involved between five and twenty grams of crack, which
produced a base offense level of 26. Eura’s offense level was
raised two levels for obstruction of justice. The probation
officer also noted that Eura’s criminal history category was I. We
note that the November 2007 version of the Guidelines would have
provided a base offense level of 24, USSG § 2D1.1, and reduced
Eura’s Guidelines range to 63 to 78 months. We also note that the
amendment to USSG § 2D1.1 was recently made retroactive. However,
because the sentence imposed was reasonable even using the November
2004 version of the Guidelines, we need not address any issue
related to the November 2007 version of the Guidelines.
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Commission’s 1995, 1997, and 2002 reports, all of which recommended
that the 100:1 ratio be narrowed.2 According to the district
court, it was required to consider these reports in “assessing
whether the punishment--whether the sentence promotes respect for
law, provides just punishment, is necessary to provide a deterrence
and to protect the public and is also reflective of the seriousness
of the offense.” (J.A. 334). The district court found that, in
view of the Commission’s reports, a sentence within the Guidelines
range would not reflect the seriousness of the offense, promote
respect for the law, or provide just punishment in this case. The
district court went on to state:
Considering all the factors, the Court finds in the case
of Mr. Eura--and I think it is appropriate to note that
it is appropriate to consider this matter as an
2
Prior to the recent amendment to USSG § 2D1.1, a defendant
who dealt five grams of crack faced the same sentence as a
defendant who dealt five hundred grams of powder cocaine. This
disparity is commonly referred to as the “100:1 ratio.” Congress
adopted the 100:1 crack/powder cocaine ratio in 1986, thereby
setting mandatory minimum sentences based on the quantity of
cocaine, in crack or powder form. Congress adopted the 100:1 ratio
in the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat.
3207, when it created minimum and maximum terms of imprisonment for
defendants convicted of trafficking in powder cocaine and crack.
For example, 21 U.S.C. § 841(b)(1)(A) sets a mandatory minimum ten
year sentence for those who possess or distribute more than five
kilograms of powder cocaine and for those who possess or distribute
more than fifty grams of crack. Moreover, § 841(b)(1)(B) sets a
mandatory minimum five year sentence for those who possess or
distribute more than five hundred grams of powder cocaine and for
those who possess or distribute more than five grams of crack. In
1995, 1997, and in 2002, Congress declined to entertain the
Sentencing Commission’s entreaties to narrow the ratio, but, with
the November 2007 amendment to USSG § 2D1.1, the ratio has been
narrowed.
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individual matter, not as a wholesale objection or
acceptance of the guidelines.
In this instance, this is the kind of case that having
considered the Sentencing Commission’s policies
recommendations, it is the kind of case that the
guideline does not provide--the crack guideline does not
provide an appropriate, fair and just punishment, and so
the Court will not impose a sentence within the
guidelines in this case.
(J.A. 335-36). Following these remarks, the district court
declined to sentence Eura on Count Two within the advisory
Guidelines range of 78 to 97 months. Rather, the district court
sentenced Eura to sixty months on Count Two, which was the lowest
possible sentence on Count Two, given the mandatory minimum
sentence required for that count. The district court also imposed
the mandatory consecutive sixty-month sentence on Count Three. In
imposing sentence, the district court indicated that it acted
“[p]ursuant to 18 U.S.C. Section 3553(a),” that it had “considered
the guidelines as advisory,” and that the chosen sentence
“satisfie[d] the prerequisites of Section 3553(a).” (J.A. 337).
II
A
In Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough
v. United States, 128 S. Ct. 558 (2007), the Supreme Court outlined
the process to be used by a sentencing court in imposing a sentence
and also outlined how an appellate court should review a sentence
imposed by the sentencing court. In Gall, the Supreme Court
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instructed that the sentencing court should first calculate the
applicable Guidelines range. 128 S. Ct. at 596. This starting
point furthers Congress’ desire for efficient administration and
nationwide consistency in sentencing. Id. After calculating the
Guidelines range, the sentencing court must give both the
government and the defendant “an opportunity to argue for whatever
sentence they deem appropriate.” Id. The sentencing court should
then consider all of the § 3553(a) factors to determine whether
they support the sentence requested by either party. Id. at 596-
97. In so doing, the sentencing court may not presume that the
Guidelines range is reasonable. Id. at 597. In the event the
sentencing court decides to impose a variance sentence, i.e., one
outside the recommended Guidelines range, the sentencing court
“must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of
the variance.” Id. As noted by the Gall Court, it is an
“uncontroversial” proposition that a “major departure should be
supported by a more significant justification than a minor one.”
Id.
The Court in Kimbrough also recognized that a sentencing court
may rely heavily on a single factor at sentencing. 128 S. Ct. at
575-76. In that case, the factor at issue was the Sentencing
Commission’s position that the crack cocaine/powder cocaine
sentencing disparity was flawed. Id. The Court made it clear that
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the Guidelines range was just one of the factors warranting
consideration by the sentencing court, and that the sentencing
court may vary from the Guidelines range based solely on policy
considerations, including a disagreement with the Guidelines. Id.
at 570.
Our appellate review of the reasonableness of a sentence
focuses on whether the sentencing court abused its discretion in
imposing the chosen sentence. Gall, 128 S. Ct. at 597. This abuse
of discretion standard of review involves two steps, the first
examines the sentence for significant procedural errors, the second
looks at the substance of the sentence. The Court in Gall
explained that “significant” procedural errors include errors such
as “failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence-including an explanation for any deviation from the
Guidelines range.” Id.
Substantive reasonableness review entails taking into account
the “totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. If the sentence is
within the Guidelines range, we, as an appellate court, may, but
are not required to, presume that the sentence is reasonable. Id.
However, if the sentence is outside the Guidelines range, we are
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prohibited from applying a presumption of unreasonableness. Id.
In reviewing the substantive reasonableness of the sentence, we may
consider “the extent of the deviation,” but we “must give due
deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Id.
Even if we would have reached a different sentencing result on our
own, this fact alone is “insufficient to justify reversal of the
district court.” Id.
B
Turning to our review of Eura’s sentence, we initially note
that there are no procedural errors. The district court correctly
calculated the Guidelines range to be 78 to 97 months’
imprisonment. After calculating the Guidelines range, the district
court carefully considered the § 3553(a) factors to determine
whether they supported a variance sentence. In so doing, the
district court did not presume that the Guidelines range was
reasonable. Moreover, the district court thoroughly explained its
reasoning supporting the variance sentence. In short, there being
no procedural errors, we must determine whether the district court
abused its discretion in determining that the § 3553(a) factors
supported a sixty-month sentence on Count Two and justified an
eighteen-month deviation from the Guidelines range.
The district court’s rationale for varying downward eighteen
months from the low-end of Eura’s Guidelines range is reasonable
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and premised on the factors set forth in § 3553(a). The district
court looked to the § 3553(a) factors and was clearly at liberty to
heavily rely on the Sentencing Commission’s position that the
crack/powder cocaine sentencing disparity was flawed. Kimbrough,
128 S. Ct. at 575-76. In view of the district court’s careful
consideration of the § 3553(a) factors, we conclude that the
eighteen-month downward variance was supported by the
justifications necessary to uphold the sentence.
III
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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