United States v. Bellamy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4887

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

AL ANTONIO BELLAMY,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00009-RLV-DCK-9)

Submitted: November 30, 2009 Decided: December 15, 2009

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Richard E. Beam, Jr., HUBBARD & BEAM, Gastonia, North Carolina,
for Appellant. Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Al Antonio Bellamy pled guilty, without a plea

agreement, to conspiracy to possess with intent to distribute

more than fifty grams of crack cocaine, more than five kilograms

of cocaine, and more than 1000 kilograms of marijuana, in

violation of 21 U.S.C. § 846 (2006). The district court

sentenced him to a 405-month term of imprisonment, a one-level

upward variance from the advisory guidelines range. On appeal,

Bellamy asserts that the district court’s application of the

murder cross-reference violated his Sixth Amendment rights and

that the court abused its discretion in varying from the

guidelines range. Finding no reversible error, we affirm.

Bellamy first asserts that application of the murder

cross-reference violated his Sixth Amendment rights because the

facts were neither submitted to a jury nor admitted by him. He

concedes, however, that judicial fact-finding is permitted. We

agree. See United States v. Benkahla, 530 F.3d 300, 312 (4th

Cir. 2008) (“Sentencing judges may find facts relevant to

determining a [g]uidelines range by a preponderance of the

evidence, so long as that [g]uidelines sentence is treated as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.”), cert. denied, 129 S. Ct. 950 (2009).

Because the 405-month sentence falls within the statutory

maximum sentence of life imprisonment, see 21 U.S.C.A.

2
§ 841(b)(1)(A) (West Supp. 2009), the district court’s finding,

by a preponderance of the evidence, that Bellamy committed

first-degree murder in a reign of terror related to his drug

activities did not violate the Sixth Amendment. To the extent

that Bellamy urges us to revisit this issue, “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

quotation marks and citation omitted).

Bellamy also contends that the district court abused

its discretion in varying upward one offense level from the

advisory guidelines range. He asserts that the reasons stated

by the district court to support the variance already were taken

into account in the application of the murder cross-reference.

We review a sentence for reasonableness under an abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007); see United States v. Abu Ali, 528 F.3d 210, 261 (4th

Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).

In reviewing the substantive reasonableness of the

sentence, we “tak[e] into account the totality of the

circumstances, including the extent of any variance from the

[g]uidelines range.” United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (internal quotation marks and citation omitted).

3
Where a sentence is outside the advisory guidelines range, the

appellate court must “consider the extent of the deviation, but

must give due deference to the district court’s decision that

the § 3553(a) factors, on a whole, justify the extent of the

variance.” Gall, 552 U.S. at 51. “‘[A] major departure should

be supported by a more significant justification than a minor

one[,]’ [b]ut a district court need not justify a sentence

outside the [g]uidelines range with a finding of ‘extraordinary’

circumstances.” United States v. Evans, 526 F.3d 155, 161 (4th

Cir. 2008) (quoting Gall, 552 U.S. at 47, 50). With these

standards in mind, we have reviewed the district court’s

explanation supporting the one-level upward variance and

conclude that the court did not abuse its discretion in light of

the multiple murders and shootings committed by Bellamy.

Accordingly, we affirm the district court’s judgment.

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