UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5188
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON CUMMINGS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00226-HEH-1)
Submitted: July 7, 2009 Decided: July 22, 2009
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Nia Ayanna
Vidal, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant. Dana J. Boente, Acting United States Attorney,
Peter S. Duffey, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Cummings appeals his 225-month sentence for
possession with intent to distribute heroin. Cummings raises
three issues on appeal. First, Cummings contends that the
district court’s use of his post-arrest statements in
calculating his sentence violated due process. Next, Cummings
argues that the district court erred in finding Cummings’s post-
arrest statements corroborated and reliable. Finally, Cummings
asserts that his 225-month sentence was unreasonable, as the
district court failed to adequately consider Cummings’s history
and personal characteristics, or otherwise address the arguments
Cummings’s attorney made during sentencing. Finding no merit in
these arguments, we affirm.
We review a sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, , 128 S. Ct. 586, 597 (2007). This review requires our
consideration of both the procedural and substantive
reasonableness of a sentence. 128 S. Ct. at 597.
In determining whether a sentence is procedurally
reasonable, we first assess whether the district court properly
calculated the defendant’s advisory guideline range. Id. at
596-97. We then consider whether the district court failed to
consider the 18 U.S.C. § 3553(a) factors and any arguments
presented by the parties, selected a sentence based on “clearly
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erroneous facts,” or failed to sufficiently explain the selected
sentence. Gall, 128 S. Ct. at 597.
When imposing sentence, the district court “‘must make
an individualized assessment based on the facts presented.’. . .
That is, the sentencing court must apply the relevant § 3553(a)
factors to the specific circumstances of the case before it.
Such individualized treatment is necessary ‘to consider every
convicted person as an individual and every case as a unique
study in the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue.’” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting
Gall, 128 S. Ct. at 598).
Finally, we review the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (quoting Gall, 128 S. Ct. at 597). When
reviewing the district court’s application of the sentencing
guidelines, this Court reviews findings of fact for clear error
and questions of law de novo. United States v. Osborne, 514
F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008).
A sentence within the properly calculated guideline range may be
afforded an appellate presumption of reasonableness. Rita v.
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United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2459, 2462
(2007).
Cummings first asserts that the district court
violated his due process rights when it used his post-arrest
statements about drug trafficking as relevant conduct in
calculating the drug weight attributable to him. Specifically,
though Cummings was arrested with approximately ninety grams of
heroin, the district court found him responsible for eighteen
kilograms.
We find no error by the district court. We have
expressly authorized lower courts to consider acquitted or
uncharged conduct in establishing drug amounts in sentencing, as
long as the quantities are established by a preponderance of the
evidence. United States v. Perry, 560 F.3d 246, 258 (4th Cir.
2009). Accordingly, Cummings’s due process argument fails.
Cummings next argues that the district court erred in
adopting the probation officer’s calculation of the attributable
drug weight, as the post-arrest statements were uncorroborated
and lacking sufficient indicia of reliability. We disagree.
After twice being advised of his Miranda * rights, Cummings
admitted that he had distributed one and a half kilograms of
heroin per month in the year prior to his arrest. These
*
Miranda v. Arizona, 384 U.S. 436 (1966).
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statements were corroborated by the fact that Cummings was
arrested while driving en route from New York to North Carolina,
in a rental car leased neither in Cummings's name nor in the
names of the other passengers. Cummings was arrested with
ninety grams of heroin, which he informed police would be used
in determining whether to expand his drug business to another
region. Finally, the information Cummings gave regarding the
procedures used to transport drugs for his business was
corroborated by the testimony of an agent of the Drug
Enforcement Administration, based on his general knowledge of
drug distribution and his conversation with a law enforcement
officer in New York. “[T]he exclusion of reliable evidence
hampers the ability of sentencing courts to consider all
relevant information about the defendant in selecting an
appropriate sentence.” United States v. Nichols, 438 F.3d 437,
444 (4th Cir. 2006). Given the established reliability of
Cummings’s post-arrest statements, the district court did not
err in using these statements to determine Cummings’s
appropriate offense level.
Finally, Cummings argues that his 225-month sentence
was procedurally and substantively unreasonable. Concerning
procedural reasonableness, Cummings does not contend that the
district court incorrectly calculated his advisory guideline
range, with the exception of the district court’s consideration
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of Cummings’s post-arrest statements, discussed supra. Our
review of the record convinces us that the district court
correctly calculated Cummings’s advisory guidelines range at 188
to 235 months.
Instead, Cummings asserts that the district court
failed to adequately consider Cummings’s history and personal
characteristics. This argument lacks merit. The district court
took into account Cummings’s history and characteristics, as
demonstrated by its classification of Cummings as a “major drug
trafficker” who had been “involved in distributing major
quantities of heroin for quite a period of time.” In light of
Cummings’s extensive involvement in the drug trade, the district
court determined that a sentence toward the upper end of the
guideline range was appropriate.
The explanation offered by the district court was
sufficient to demonstrate its individualized assessment of the
circumstances of Cummings’s case prior to pronouncing the
sentence. Indeed, “when a judge decides to simply apply the
[g]uidelines to a particular case, doing so will not necessarily
require lengthy explanation.” Rita, 127 S. Ct. at 2468.
Instead, where “[c]ircumstances . . . make clear that the judge
rests his decision upon the Commission’s own reasoning that the
[g]uidelines sentence is a proper sentence,” extensive
explanation of the sentence is unnecessary. Id. Here, the
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court indicated it had considered all the guideline factors, and
delineated specific factors it found to be of particular
importance. It then pronounced a sentence within the guidelines
range. See Rita, 127 S. Ct. at 2459, 2462 (approving appellate
presumption of reasonableness to sentence within guidelines
range). Accordingly, we find that the court adequately
considered and explained the factors that led to the sentence
imposed. Cummings’s challenge to his sentence is accordingly
without merit.
Therefore, we affirm Cummings’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court, and further argument will not aid the
decisional process.
AFFIRMED
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