United States v. Hudson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4479

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVIDE HUDSON,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Robert C. Chambers,
District Judge. (5:02-cr-00140-1)

Submitted: October 8, 2008 Decided: October 28, 2008

Before MOTZ, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Erik S. Goes, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Davide Hudson appeals his sentence imposed after

resentencing. After this court affirmed Hudson’s conviction and

twenty-year sentence, the Supreme Court granted Hudson’s petition

for writ of certiorari and remanded to this court for further

consideration in light of United States v. Booker, 543 U.S. 220

(2005). Hudson v. United States, 543 U.S. 1182 (2005). We vacated

his sentence and remanded for resentencing. United States v.

Hudson, No. 03-4358, 2006 WL 2018634 (4th Cir. July 14, 2006)

(unpublished). Hudson noted an appeal from the sentence. Before

this court could consider the appeal, we granted Hudson’s motion to

vacate the sentence and remand for resentencing in light of

Kimbrough v. United States, 128 S. Ct. 558 (2007). United States

v. Hudson, No. 07-4570 (4th Cir. Feb. 5, 2008) (unpublished order).

During the course of the proceedings in the district court,

Hudson’s offense level was reduced for his post-conviction

rehabilitative efforts and as a result of the amendment to the

Sentencing Guidelines that reduced offense levels for certain

quantities of crack cocaine. As a result of the two resentencings,

Hudson’s sentence was reduced from twenty years to ten years and

one month. However, despite revisiting the issue of drug quantity

during the first resentencing, the district court never altered its

original finding that Hudson’s relevant conduct with respect to

drug quantity qualified him for an offense level of thirty-six. On

2
appeal, Hudson challenges the district court’s factual finding at

sentencing regarding drug quantity, as he did during his original

appeal. He also claims the sentence was not reasonable because it

was longer than necessary to comply with the factors under 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2008). Finding no error, we

affirm.

With respect to the district court’s decision at

resentencing regarding drug quantity, the record remains

substantially unchanged since we first reviewed the district

court’s findings during the initial appeal. At resentencing, the

court relied upon its earlier findings in reaffirming its decision.

We see no reason to disturb our original finding that the drug

quantity was proven by a preponderance of the evidence.

We will affirm a sentence imposed by the district court

if it is within the statutorily prescribed range and reasonable.

United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). This court

reviews Hudson’s sentence under a deferential abuse-of-discretion

standard. See Gall v. United States, 128 S. Ct. 586, 590 (2007).

We find no procedural error with the sentence. See United

States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128

S. Ct. 2525 (2008). We also find the sentence substantively

reasonable. Gall, 128 S. Ct. at 597.

Accordingly, we affirm the sentence. We dispense with

oral argument because the facts and legal contentions are

3
adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

4