UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVERETT MICHAEL BYERS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00129-JAB-1)
Submitted: October 7, 2009 Decided: October 29, 2009
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Terry M. Meinecke, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Everett Michael Byers appeals from his convictions for
possession of ammunition by a convicted felon and possession
with intent to distribute crack cocaine and his resulting
240-month sentence. On appeal, Byers challenges the denial of
his motion to suppress and asserts that the district court erred
in failing to consider the sentencing disparity between crack
and powder cocaine offenses prior to imposing sentence. We
affirm.
With regard to the denial of Byers’ motion to
suppress, we have reviewed the district court’s decision, the
briefs of the parties, and the record on appeal, and we find no
reversible error. Accordingly, we find that the good faith
exception applied, and we affirm for the reasons stated by the
district court. (J.A. at 124-37). *
*
Byers makes much of the district court’s alleged error in
determining that, even absent an unreliable hearsay statement,
the facts available to the magistrate placed Byers at the scene
of the shooting. According to Byers, absent the hearsay
statement, the facts showed only that a light skinned, mixed
race man named “Mike” was at the scene. However, the district
court’s finding that the police officer and the magistrate judge
lacked a substantial basis on which to credit the hearsay
statement does not forbid consideration of the statement in
determining whether the police officer’s testimony was “bare
bones,” such that the good faith exception should not apply.
See United States v. DeQuasie, 373 F.3d 509, 521-22 & n.17 (4th
Cir. 2004) (“If a lack of substantial basis also prevented
application of the Leon objective good faith exception, the
exception would be devoid of substance.”). Thus, it is
(Continued)
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Byers next asserts that the district court erred in
failing to consider the Guidelines’ disparity for crack and
powder cocaine offenses. Byers asserts that he preserved this
argument when he argued at sentencing that the Guidelines made a
“substantial difference” in his sentence. However, in making
this statement, counsel was referring to the effect Byers’ armed
career criminal status had on his Guidelines range; the crack
and powder cocaine disparity was not mentioned or inferred. As
such, our 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).
The district court’s reliance on the crack to powder
ratios was not error, plain or otherwise, especially considering
that Byers was sentenced after the 2007 crack cocaine amendments
to the Guidelines. See United States v. Go, 517 F.3d 216, 218
(4th Cir. 2008) (approving presumption of reasonableness for
sentence within properly calculated Guidelines range). However,
even if it was error, it must still be established that the
error affected Byers’ substantial rights. See Branch, 537 F.3d
irrelevant what the evidence showed without the hearsay
statement, since the statement was properly considered in
determining the application of the good faith exception.
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at 343. We have previously “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” to find that the error
affected substantial rights. United States v. White, 405 F.3d
208, 223 (4th Cir. 2005). Thus, the burden is on Byers 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
does not reveal a nonspeculative basis for concluding either
that (a) the district court was unaware that it possessed the
discretion to impose a shorter sentence or that (b) had it known
it possessed such discretion, it would have imposed a shorter
sentence. In any event, Byers’ ultimate Guidelines range was
not determined by his drug quantity, but rather by his status as
an armed career criminal. See United States v. Ogman, 535 F.3d
108, 111 (2d Cir. 2008) (clarifying 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
to powder ratio that it incorporates, the sentence does not
present the type of error for which remand . . . is
appropriate”). Therefore, because Byers cannot demonstrate that
the district court’s failure to sua sponte consider the
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crack/powder disparity affected his substantial rights, there
was no plain error.
Based on the foregoing, we affirm Byers’ convictions
and sentence. 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
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