UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4362
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICE EDGAR MCKENZIE, a/k/a Cappo, a/k/a Cappa, a/k/a
Richard Knight, a/k/a Emanuel Askew,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:97-cr-00032-SB-1)
Submitted: November 6, 2009 Decided: November 20, 2009
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. Peter Thomas Phillips, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice Edgar McKenzie appeals from the district
court’s grant in part of his motion for reduction of sentence
based upon the crack cocaine amendments to the Sentencing
Guidelines pursuant to 18 U.S.C. § 3582(c) (2006). We
previously remanded the case to the district court with
directions for the court to provide adequate reasoning for its
decision. See United States v. McKenzie, No. 08-7630 (4th Cir.
Mar. 18, 2009) (unpublished). The district court then entered
another order, reimposing the same sentence and providing
expanded reasoning. McKenzie again appealed. On appeal, he
asserts that the district court should have applied Apprendi v.
New Jersey, 530 U.S. 466 (2000), when imposing his new sentence.
He also claims that the district court’s reasoning was still
insufficient. We affirm.
As to McKenzie’s first claim, Apprendi is not
retroactively applicable in a § 3582 proceeding. United
States v. McBride, 283 F.3d 612, 615-16 (3d Cir. 2002); see also
United States v. Dunphy, 551 F.3d 247, 251-53 (4th Cir.)
(holding that “proceedings under § 3582(c)(2) do not constitute
a full resentencing of the defendant” and stating that rule in
Booker regarding proof requirements for facts that increase
criminal penalties “has no application to proceedings under
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§ 3582(c)(2)”), cert. denied, 129 S. Ct. 2401 (2009).
Accordingly, this claim is without merit.
Turning to McKenzie’s assertions that the district
court again failed to provide reasoning for its decision,
McKenzie specifically argues that the district court failed to
consider the fact that he was sentenced pre-Apprendi under a
sentencing scheme that was later found to be unconstitutional.
Further, McKenzie claims that the court’s consideration of his
post-conviction behavior was conclusory. Instead, McKenzie
asserts that the court relied solely on the factors supporting
his original sentence and failed to consider the present
factors.
In United States v. Legree, 205 F.3d 724, 728-29 (4th
Cir. 2000), we held that there exists a presumption, absent a
contrary indication in the record, that the district court
considered the § 3553(a) factors in denying a § 3582(c)(2)
motion. However, in United States v. Gall, 552 U.S. 38, 128 S.
Ct. 586, 597 (2007), which was decided after Legree, the Supreme
Court held that a sentencing judge must make an “individualized”
sentence assessment based on the facts presented and explain
adequately the chosen sentence. While we have not yet applied
Gall to § 3582 motions, we find that, even under this heightened
standard, the district court’s reasoning was adequate.
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The court stated that McKenzie’s underlying crime and
conduct was reprehensible, that a longer sentence would promote
respect for the law, * and that neither the Supreme Court’s new
decisions nor McKenzie’s post-conviction conduct entitled him to
a lower sentence. Our review of the record makes it clear that
the court considered McKenzie’s arguments for a lower sentence
and rejected them. It is also apparent from the record that the
district court explicitly considered the § 3553 factors prior to
imposing sentence. Thus, we find no abuse of discretion in the
district court’s recitation of its reasoning.
Accordingly, we affirm. We deny McKenzie’s motion to
substitute and appoint counsel. 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
*
Both the Government and McKenzie agreed that a sentence at
the low end of the amended Guidelines range was appropriate.
Instead, the district court imposed a sentence at the high end
of the amended Guidelines range.
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