UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5067
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS WOODS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:07-cr-00127-WDQ-1)
Submitted: November 24, 2008 Decided: January 5, 2009
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT,
P.C., Baltimore, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, John W. Sippel, Jr., Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Woods appeals the district court’s judgment
entered pursuant to his conviction after a jury trial for
possession with the intent to distribute cocaine and possession
with the intent to distribute marijuana, both in violation of 21
U.S.C. § 841(a)(1) (2000). Woods was sentenced to 262 months’
imprisonment on these convictions. For the reasons that follow,
we affirm.
The evidence adduced at trial revealed that during
their surveillance of two Baltimore, Maryland avenues known for
drug dealing, detectives with the Baltimore Police Department
observed and videotaped Woods engaging in multiple hand-to-hand
drug transactions with other persons. During this surveillance,
detectives observed Woods enter and exit from an alleyway and
observed and videotaped Woods entering an alleyway and emerging
from under the rear porch of a nearby residence. Woods was
placed under arrest, and detectives recovered vials and plastic
bags, ultimately determined to contain 2.31 grams of powder
cocaine and 8.45 grams of marijuana, from underneath the porch.
After his arrest, Woods waived his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and admitted that he had been
selling cocaine and marijuana and that the drug stash under the
back porch of the residence belonged to him.
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First, Woods contends that he was subject to
vindictive prosecution, in violation of the Fifth Amendment. As
grounds for this claim, Woods relies on statements made by the
Government’s attorney at Woods’ detention hearing that Woods was
being prosecuted in federal court, despite, in the words of the
Government’s attorney, “the relatively small quantity of cocaine
and marijuana recovered,” pursuant to the Baltimore, Maryland
Exile Initiative as a “violent repeat offender.” Pursuant to
this Initiative, local police refer for federal prosecution
individuals who have been unsuccessfully prosecuted for their
participation in crimes of violence. The Government’s attorney
noted at the hearing that Woods, a career offender, had been
unsuccessfully prosecuted for past violent crimes in state court
and was therefore a target of the Exile Initiative. Woods
asserts that because he exercised his right to defend himself
and was ultimately not convicted of murder and attempted murder
in state court, he was vindictively targeted for federal
prosecution.
To establish prosecutorial vindictiveness, a defendant
must show that the prosecutor acted with genuine animus toward
the defendant, and the defendant would not have been prosecuted
but for that animus. United States v. Wilson, 262 F.3d 305, 314
(4th Cir. 2001). If a defendant cannot produce direct evidence
of a vindictive motive, he can establish a rebuttable
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presumption of vindictiveness by showing that a “reasonable
likelihood of vindictiveness exists.” United States v. Goodwin,
457 U.S. 368, 373 (1982). If he succeeds, the burden then
shifts to the Government to present objective evidence
justifying its conduct. Id. at 374. The evidence is viewed,
however, in the context of the “presumption of regularity” that
attends decisions to prosecute. United States v. Armstrong, 517
U.S. 456, 464 (1996) (citation omitted). Thus, “in the ordinary
case, so long as the prosecutor has probable cause to believe
that the accused committed an offense defined by statute, the
decision whether or not to prosecute, and what charge to file
. . . generally rests entirely in his discretion.” Id.
(internal quotations omitted).
We note at the outset that most successful vindictive
prosecution claims involve retaliatory prosecutions by the same
sovereign that earlier brought the defendant to trial. See,
e.g., Goodwin, 457 U.S. at 381. Here, however, the alleged
vindictive prosecution was brought by a different sovereign
altogether. See United States v. Robinson, 644 F.2d 1270, 1273
(9th Cir. 1981) (expressing “doubt as to whether a prosecution
could be condemned as ‘vindictive’ when the defendant’s claim is
that one sovereign is punishing him for rights he asserted
against a different sovereign.”). Additionally, there is no
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claim that Woods was intimidated from exercising any right in
any proceedings.
Woods attempts to overcome this difficulty by pointing
to the Government’s attorney’s statements at the detention
hearing that Woods was being prosecuted in federal court, at
least in part, on account of his prior unsuccessful prosecutions
in state court for murder and attempted murder. Even if we were
to assume there was some evidence of animus on the part of
Maryland law enforcement in referring Woods for prosecution
pursuant to the Exile Initiative, there is no evidence to
suggest that the Government official who actually made the
decision to prosecute Woods was motivated by any impermissible
consideration. And we will not “impute the unlawful biases of
the investigating agents to the persons ultimately responsible
for the prosecution.” United States v. Hastings, 126 F.3d 310,
314 (4th Cir. 1997).
Finally, objective evidence in the record clearly
supports the Government’s decision to prosecute Woods in federal
court. Given the facts adduced at trial, and especially in
light of Woods’ own admission, the Government clearly had
probable cause to believe that Woods committed the charged
offenses. Armstrong, 517 U.S. at 464. Accordingly, Woods’
vindictive prosecution claim fails.
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Next, Woods contends that his 262-month prison
sentence violates his Eighth Amendment right to be free from
cruel and unusual punishment because the sentence is
disproportionate to the crime committed. This court has held
that “proportionality review is not available for any sentence
less than life imprisonment without the possibility of parole.”
United States v. Ming Hong, 242 F.3d 528, 532 & n.3 (4th Cir.
2001). Because Woods received a sentence of less than life
imprisonment, the proportionality of his sentence cannot be
reviewed on appeal. *
Finally, Woods contends that his sentence is
unreasonable. We review Woods’ sentence under a deferential
abuse of discretion standard. See Gall v. United States, 128 S.
Ct. 586, 590 (2007). To determine whether a sentencing court
abused its discretion, we undertake a two-part analysis. United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). First, we
examine the sentence for “significant procedural errors,” and
second, we evaluate the substance of the sentence. Id.
*
Recognizing that Ming Hong is controlling, Woods contends
that the decision conflicts with the Supreme Court’s Eighth
Amendment jurisprudence. However, even if proportionality
review was available to Woods, his sentence is not
disproportionate in light of his recidivism. See Ewing v.
California, 538 U.S. 11, 29-30 (2003) (plurality opinion)
(sentence of twenty-five years to life for recidivist did not
violate the Eighth Amendment).
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Significant procedural errors include improper calculation of
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the 18 U.S.C.A. § 3553(a) (West 2006 & Supp.
2008) factors, or failing to adequately explain the given
sentence. Id. at 473. Substantive reasonableness entails a
review of the totality of the circumstances, and we may presume
that a sentence within the advisory Guidelines range is
reasonable. Id.; see Rita v. United States, 127 S. Ct. 2456,
2459 (2007).
Here, the district court followed the necessary steps
in sentencing Woods. The court properly calculated the
Guidelines range and heard from Woods and his counsel regarding
that range and the § 3553(a) factors. Further, the context
surrounding the district court’s sentence makes clear that it
considered the applicable § 3553(a) factors and concluded that
the Guidelines range provided an appropriate basis for
determination of sentence. See United States v. Montes-Pineda,
445 F.3d 375, 380 (4th Cir. 2006) (holding that a court need not
“robotically tick through” every subsection of § 3553(a)), cert.
denied, 127 S. Ct. 3044 (2007). In addition, we find no abuse
of discretion in the court’s decision to sentence Woods at the
low end of the Guidelines range for career offenders, especially
given Woods’ lengthy criminal history.
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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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