UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4868
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OLIVER DERWIN THOMAS,
Defendant - Appellant.
No. 07-4989
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWIN LERON HAMMOND, a/k/a Edwin Leon Hammond,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.;
N. Carlton Tilley, Jr., Senior District Judges. (1:07-cr-00042-
WLO)
Submitted: September 18, 2009 Decided: October 9, 2009
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina; Louis C. Allen, III, Federal Public
Defender, Eric D. Placke, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellants. Anna Mills Wagoner,
United States Attorney, David P. Folmar, Jr., Assistant United
States Attorney, Clifford R. Lamar, II, Third Year Law Student,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Oliver Derwin Thomas and Edwin Leron Hammond pled
guilty to distribution of cocaine base, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B) (2006). They now appeal their
respective 280-month and 262-month sentences, arguing that the
sentences are unreasonable. The two cases have been
consolidated on appeal. Finding no error, we affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, , 128 S. Ct. 586, 597 (2007); see also United States v.
Layton, 564 F.3d 330, 335 (4th Cir. 2009). We conclude that
Thomas’ and Hammond’s sentences are both procedurally and
substantively reasonable. The district court properly
calculated the guidelines range, treated the guidelines as
advisory, and considered the applicable 18 U.S.C. § 3553(a)
(2006) factors. See United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007). Moreover, the district courts’ sentences were
based on their “individualized assessment” of the facts of the
case. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). Last, Thomas’ and Hammond’s within-guidelines sentences
are presumptively reasonable on appeal. United States v. Go,
517 F.3d 216, 218 (4th Cir. 2008).
In rebutting the presumption of reasonableness, see
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)
3
(stating presumption may be rebutted by showing sentence is
unreasonable when measured against the § 3553(a) factors),
Thomas argues his sentence is unreasonable in light of the
Supreme Court’s subsequent decision in Kimbrough v. United
States, 552 U.S. 85, , 128 S. Ct. 558 (2007), and Amendment
706 to the federal sentencing guidelines, which lowered the base
offense level for crack offenses effective November 1, 2007.
Thomas did not object to his presentence report based on the
crack cocaine/powder disparity. Applying Amendment 706
retroactively offers Thomas no relief. Because Thomas was
designated a career offender, his base offense level of thirty-
seven was determined by the statutory maximum sentence of life
imprisonment applicable to his offense under 21 U.S.C.
§ 841(b)(1)(A), not the drug quantity found attributable to him.
See U.S. Sentencing Guidelines Manual § 4B1.1(b)(A) (2006).
Thus, although the base offense level corresponding to the
determined drug quantity would be lower as a result of Amendment
706, the amendment is ultimately of no consequence because
calculation of Thomas’ offense level was driven by the career
offender designation. See USSG § 2D1.1(c)(8).
In Kimbrough, the Supreme Court held that “it would
not be an abuse of discretion for a district court to conclude
when sentencing a particular defendant that the crack/powder
disparity yields a sentence ‘greater than necessary’ to achieve
4
§ 3553(a)’s purposes, even in a mine-run case.” 128 S. Ct. at
575. Because Thomas did not argue below that he should be
sentenced below the advisory guidelines range based upon the
crack/powder cocaine disparity in the guidelines, review is for
plain error. See United States v. Branch, 537 F.3d 328, 343
(4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009). Assuming
the court’s failure to consider the crack/powder disparity
constitutes error that was plain, it must still be established
that the error affected the defendant’s substantial rights. See
id. This court previously has “concluded that the error of
sentencing a defendant under a mandatory guidelines regime is
neither presumptively prejudicial nor structural,” thereby
requiring a showing of “actual prejudice.” United States v.
White, 405 F.3d 208, 223 (4th Cir. 2005). Thus, the burden is
on the defendant to establish that the error “affected the
district court’s selection of the sentence imposed.” Id.
Here, the record is entirely silent on this issue and
the record does not reveal a nonspeculative basis for concluding
that the district court would have imposed a shorter sentence
had it known it possessed the discretion to do so. In any
event, Kimbrough is of no assistance to Thomas because his
ultimate guidelines range was not determined based on drug
quantity but on his status as a career offender. See United
States v. Ogman, 535 F.3d 108, 109 (2d Cir. 2008) (clarifying
5
that when “a district court sentences a defendant pursuant to a
Guidelines range that results from his status as a career
offender, and without reliance upon the Guidelines’ drug
quantity table and the crack powder ratio that it incorporates,
the sentence does not present the type of error for which remand
. . . is appropriate”); United States v. Jiminez, 512 F.3d 1, 8-
9 (1st Cir. 2007) (“As we have explained, the crack/powder
dichotomy is irrelevant to the career offender sentence actually
imposed in this case. Consequently, the decision in
Kimbrough . . . is of only academic interest here.”).
Therefore, Thomas cannot demonstrate that the district court’s
failure to consider the crack/powder disparity affected his
substantial rights.
Thomas also argues his sentence is substantively
unreasonable under § 3553(a) because his co-defendant, Hammond,
received a shorter sentence by eighteen months. He maintains
that, unlike Hammond, he was merely a facilitator in the
offense. He further argues that the court should have
considered his difficult childhood and disadvantaged life. Both
Thomas and Hammond pled guilty to the same offense and both were
sentenced as career offenders. The sentence differential can be
easily understood given that Thomas and Hammond were sentenced
by different judges and Hammond attempted to cooperate with the
Government. Furthermore, the court listened to defense
6
counsel’s argument concerning Thomas’ background and, in its
discretion, the district court considered more significant
Thomas’ recidivism. The district court therefore did not abuse
its discretion in imposing the chosen sentence.
On appeal, Hammond maintains his 262-month sentence is
unreasonable because it is greater than necessary to accomplish
the goals of § 3553(a) and that the court did not have the
benefit of the Gall decision in fashioning his sentence. In
Hammond’s case, the district court treated the properly
calculated guidelines as advisory, considered the relevant
§ 3553(a) factors, and heard argument from the parties as well
as a statement from Hammond. The court clearly took into
consideration Hammond’s possible cooperation with the Government
and his lengthy criminal history in determining that a sentence
at the low end of the guidelines range, as specifically
requested by Hammond, was appropriate. Hammond has simply not
rebutted the appellate presumption that his sentence is
reasonable. Accordingly, the district court did not abuse its
discretion in imposing a 262-month sentence.
We therefore affirm Thomas’ and Hammond’s sentences.
We further deny Thomas’ motion to proceed pro se/appoint new
counsel. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
7
before the court and argument would not aid the decisional
process.
AFFIRMED
8