UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4589
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEANTE DRAKE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:07-cr-00053-IMK-JSK-1)
Submitted: February 27, 2009 Decided: March 16, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Jane Moran, JANE MORAN LAW OFFICE, Williamson, West Virginia,
for Appellant. Shawn Angus Morgan, Assistant United States
Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deante Drake appeals the 292-month sentence imposed
following his guilty plea to conspiracy to possess with intent
to distribute and to distribute fifty grams or more of cocaine
base (“crack”), in violation of 21 U.S.C. §§ 841, 846 (2006).
The Government has moved to dismiss Drake’s appeal based upon a
waiver of appellate rights in his plea agreement.
We conclude that Drake’s appeal of his sentence is
barred by his waiver of appellate rights, except for his claim
that his sentence was impermissibly based upon race. United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
Accordingly, we grant the motion to dismiss in part and dismiss
the appeal of the claims not based on race. We also deny the
motion to dismiss in part on the ground that Drake’s claim of
racial bias falls outside the scope of the waiver provision and
affirm the sentence.
Turning to the non-waived issue, Drake, an African
American, contends that his career offender sentence was
unreasonable, both because his Caucasian co-defendants received
lighter sentences and because a study by the United States
Sentencing Commission found that the career offender provision
has a disparate impact on black males. We find Drake’s
arguments unpersuasive.
2
A district court must engage in a multi-step process
at sentencing. First, it must calculate the appropriate
advisory Guidelines range. It then must consider the resulting
range in conjunction with the factors set forth in 18 U.S.C.
§ 3553(a) (2006) and determine an appropriate sentence. Gall v.
United States, 128 S. Ct. 586, 596 (2007). Courts of appeal
review a sentence for reasonableness, applying an abuse of
discretion standard. Id. at 597; United States v. Go, 517 F.3d
216, 218 (4th Cir. 2008). In conducting this review, this court
must first determine that the district court did not commit any
significant procedural error, 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.
Gall, 128 S. Ct. at 597. We then consider the substantive
reasonableness of the sentence, and may apply a presumption of
reasonableness to a within-Guidelines sentence. Go, 517 F.3d at
218; see Gall, 128 S. Ct. at 597.
It is undisputed that Drake qualified as a career
offender and that the district court properly calculated the
advisory Guidelines range. The district court adequately
contemplated the § 3553(a) factors, the role Drake played in the
offense in comparison to that of his co-defendants, and
3
considered whether to impose a variance sentence before
ultimately deciding to sentence Drake at the bottom of the
Guidelines range. We find no evidence to support Drake’s claim
that his sentence impermissibly was based on race. See United
States v. Moore, 481 F.3d 1113, 1115 (8th Cir. 2007) (rejecting
challenge to career offender sentence based on racially
disparate impact of career offender provision).
For these reasons, we dismiss in part and affirm in
part. 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.
DISMISSED IN PART;
AFFIRMED IN PART
4