United States v. Woods

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-5067

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

2
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

3
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

4
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.

5
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).

6
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