United States v. Thomas

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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)

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(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

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§ 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

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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

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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

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before the court and argument would not aid the decisional

process.

AFFIRMED

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