UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4676
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHON EDWARD MEEKS, a/k/a Lashon Edward Meeks, a/k/a Lashawn
Edward Meeks, a/k/a Teddy,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
Senior District Judge. (CR-04-466)
Submitted: November 30, 2009 Decided: December 17, 2009
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James D. Williams, Jr., Durham, North Carolina, for Appellant.
Sandra Jane Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shon Edward Meeks was convicted, pursuant to a guilty
plea, to one count of distributing cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A) (2006). He was sentenced to
262 months in prison, at the low end of the Sentencing
Guidelines range, and ten years of supervised release. He
appeals his conviction and sentence. His counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967).
Although informed of his right to do so, Meeks did not file a
pro se supplemental brief. The Government elected not to file a
brief. 1 Finding no error, we affirm.
Meeks was indicted based on his sale of 121.9 grams of
cocaine base (crack) to two undercover agents of the Drug
Enforcement Agency and a confidential informant. At the time he
entered his guilty plea, Meeks was 27 years old and he had a
GED. He had considerable experience with the criminal justice
system, albeit in state court, including several guilty pleas to
felony charges. He was not under the influence of drugs or
alcohol at the time of the plea hearing. The district court
explained the charge, informed Meeks of the minimum and maximum
1
Although Meeks waived his right to appeal in his plea
agreement, the Government has not sought to dismiss the appeal
based on the waiver. Thus, the waiver will not be enforced.
United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000).
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terms of imprisonment, and ensured that Meeks’s plea was not
obtained through threats or promises. The court explained the
rights Meeks was forgoing by pleading guilty, including trial by
jury, confrontation and cross-examination of witnesses, and the
like. There is nothing in the record to suggest that Meeks’s
guilty plea was not knowing and voluntary.
Meeks’s base offense level, based on the quantity of
drugs he sold, was 32 under the version of the Sentencing
Guidelines then in effect. 2 U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(4) (2004). However, his extensive criminal history
established Meeks as a career offender, setting his offense
level at 37. USSG § 4B1.1. After an acceptance of
responsibility adjustment, Meeks’s final adjusted offense level
was 34. His criminal history category was VI. This calculation
resulted in an advisory Guidelines range of 262 to 327 months’
imprisonment. Meeks’s offense was subject to a statutory
mandatory minimum sentence of twenty years, and a statutory
maximum of life imprisonment.
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The Sentencing Guidelines pertaining to crack cocaine were
lowered after Meeks was sentenced. See USSG App. C Amend. 706.
The appropriate avenue for seeking a reduced sentence in light
of Amendment 706 is a motion for a reduction of sentence
pursuant to 18 U.S.C. § 3582 (2006). See United States v.
Brewer, 520 F.3d 367, 368 n.1 (4th Cir. 2008). We express no
opinion about the possible merit of any such motion.
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At sentencing, the district court adopted the factual
findings and recommendations in the Presentence Report. The
court acknowledged that the Guidelines were not binding.
Although it did not specifically list each sentencing factor set
forth in 18 U.S.C. § 3553(a) (2006), the court pointed to
Meeks’s lengthy criminal history, from his first of several drug
convictions at the age of 16, to a firearms conviction, to the
repeated revocations of his terms of supervised release. The
court stated that “it’s been difficult obviously for the courts
to get the defendant’s attention.” The court recognized that
the Guidelines range was “extensive,” and imposed a sentence at
the low end of that range. The court further explained that it
was imposing a long sentence because “I think it’s fair to you,
fair to the government and to the public, and it is a reasonable
sentence under the circumstances.” This explanation provides a
rationale tailored to Meeks’s case and is sufficient to show
that the district court conducted the sort of individualized
sentencing analysis required under the relevant case law,
including Gall v. United States, 552 U.S. 38, 46 (2007), United
States v. Rita, 551 U.S. 338, 346-47 (2007), and United States
v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Meeks’s counsel raises two challenges related to
sentencing in his Anders brief. First, counsel asserts that the
prosecutor abused her discretion in seeking an enhanced sentence
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pursuant to 21 U.S.C. § 851 (2006). However, the prosecutor
agreed not to file a § 851 notice as part of Meeks’s plea
agreement. To the extent Meeks is challenging the prosecutor’s
use of his prior convictions to increase the applicable
statutory mandatory minimum sentence pursuant to 21 U.S.C.
§ 841, it is well settled that the prosecutor has broad
discretion over whom to prosecute and what charges to file.
United States v. Armstrong, 517 U.S. 456, 464 (1996). “‘[I]n
the absence of clear evidence to the contrary, courts presume
that [prosecutors] have properly discharged their official
duties.’” Id. (quoting United States v. Chemical Foundation,
Inc., 272 U.S. 1, 14-15 (1926)). Meeks had an extensive
criminal history, and there was nothing improper about seeking
the statutorily prescribed increased penalty based on that
history.
Next, Meeks’s claim that his prior convictions should
have been alleged in the indictment is clearly foreclosed by
this Circuit’s precedent. United States v. Cheek, 415 F.3d 349,
354 (4th Cir. 2005) (reaffirming validity of Almendarez-Torres
v. United States, 523 U.S. 224 (1998)). “[A] panel of this
court cannot overrule, explicitly or implicitly, the precedent
set by a prior panel of this court. Only the Supreme Court or
this court sitting en banc can do that.” Scotts Co. v. United
Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002) (internal
5
quotation marks and citation omitted). Thus, this claim
warrants no relief.
Finally, after the district court imposed sentence on
Meeks, the Supreme Court held, in Kimbrough v. United States,
552 U.S. 85 (2007), that the district court could deviate from
the Guidelines’ 100-to-1 crack cocaine to powder cocaine ratio
when imposing sentence. Meeks did not raise a Kimbrough claim
in the district court or on appeal. Nevertheless, in accord
with our duty under Anders, we have considered whether Kimbrough
might affect Meeks’s sentence, and we conclude it does not.
There is nothing in the record suggesting the district court
would have imposed a lower sentence if it knew it had the
authority to do so. Moreover, Kimbrough is of no real
assistance to Meeks because his Guidelines range was not
ultimately determined based on drug quantity, but rather was
based on his status as a career offender. See United States v.
Ogman, 535 F.3d 108, 109 (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 powder ratio that it incorporates, the sentence does
not present the type of error for which remand . . . is
appropriate”); United States v. Jimenez, 512 F.3d 1, 8-9 (1st
Cir. 2007) (“As we have explained, the crack/powder dichotomy is
6
irrelevant to the career offender sentence actually imposed in
this case. Consequently, the decision in Kimbrough . . . is of
only academic interest here.”).
As required by Anders, we have reviewed the entire
record and have found no meritorious issues for appeal.
Therefore, we affirm Meeks’s conviction and sentence. This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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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