UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5146
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WESLEY DEVON FOOTE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00177-NCT-1)
Submitted: August 12, 2010 Decided: September 14, 2010
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
Julie Ann Daniel, Third-Year Law Student, Wake Forest
University, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wesley Devon Foote pled guilty to three counts of
distributing cocaine base (crack) and was sentenced in 2006 to a
term of 262 months imprisonment. We affirmed his sentence;
however, the Supreme Court vacated the judgment and remanded his
case for reconsideration in light of Kimbrough v. United States,
552 U.S. 85 (2007) (holding that sentencing court may consider
crack/powder cocaine sentencing ratio as basis for variance).
See United States v. Foote, 249 F. App’x 967 (4th Cir. 2007)
(No. 07-4129), vacated, 552 U.S. 1163 (2008). On remand from
the Supreme Court, we vacated Foote’s sentence and remanded for
resentencing “[t]o give the district court the opportunity to
reconsider the sentence in light of Kimbrough[.]” United
States v. Foote, 276 F. App’x 307 (4th Cir. 2008) (No. 07-4139).
The district court again declined to vary below the guideline
range and reimposed the same term of 262 months imprisonment.
On appeal, Foote contends that the district court
erred in one of two ways; either by not recognizing its
“discretion to determine what the appropriate ratio should be
between crack and powder cocaine,” or by refusing to exercise
its discretion. He also suggests that the district court did
not adequately explain its reasons for not granting him a
downward variance. We affirm.
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We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). Generally, this requires us to assess whether the
district court properly calculated the guidelines range,
considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any
arguments presented by the parties, and sufficiently explained
the selected sentence. Id. at 49-50; see United States v. Lynn,
592 F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized
explanation must accompany every sentence.”); United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). We must also review
the substantive reasonableness of the sentence, examining “the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
However, we remanded this case after Kimbrough was
decided solely to afford the district court an opportunity to
decide whether it wished to vary in light of Kimbrough. The
district court’s comments during the resentencing leave no doubt
that it understood its discretion to vary below the guideline
range based on the crack-to-powder cocaine ratio. The court
decided not to vary and explained that it wished to leave to
Congress the decision as to what the proper sentencing ratio
should be. We are satisfied that the district court exercised
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its discretion, complied with its mandate on remand, and
adequately explained its decision.
We therefore affirm the sentence imposed by the
district court. 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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