UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4859
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LAMONT BOOMER,
Defendant - Appellant.
No. 09-7412
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LAMONT BOOMER,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:04-cr-00089-HEH-1)
Submitted: October 29, 2010 Decided: November 19, 2010
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Mark Bodner, Fairfax, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Angela Mastandrea-Miller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Michael Lamont Boomer appeals from the district
court’s orders imposing a new sentence after granting 28
U.S.C.A. § 2255 (West Supp. 2010) relief and Boomer’s motion for
a sentence reduction under 18 U.S.C. § 3582(c) (2006). We
vacate the orders and remand for resentencing consistent with
this opinion.
On appeal, Boomer contends that the district court
erred in failing to consider his request for a sentence
reduction based on the sentencing disparity between crack and
powder cocaine when imposing sentence. The district court does
not err if, when sentencing a defendant, it concludes “that the
crack/powder disparity yields a sentence ‘greater than
necessary’ to achieve [18 U.S.C.] § 3553(a)’s [(2006)]
purposes.” Kimbrough v. United States, 552 U.S. 85, 110 (2007).
Rather, under the advisory Sentencing Guidelines, “district
courts are entitled to reject and vary categorically from the
crack-cocaine Guidelines based on a policy disagreement with
those Guidelines.” Spears v. United States, ___ U.S. ___, 129
S. Ct. 840, 843-44 (2009). The district court is not required
to apply a one-to-one ratio; Spears merely permits a district
court to substitute its own ratio if it determines the
sentencing disparity is unwarranted.
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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). This review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence.
Id. Procedural reasonableness is determined by reviewing
whether the district court properly calculated the defendant’s
advisory Guidelines range and then considered the 18 U.S.C.
§ 3553(a) factors, analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence. Id.
at 49-51. “Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
the record an ‘individualized assessment’ based on the
particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Here, the district court did not explicitly address
Boomer’s sentencing disparity argument. In fact, the court
stated that “the crack disparity will be considered with respect
to the motion under 3582(c).” Although it is possible that the
court recognized its discretion to vary downward and decided
that the two-level reduction in the upcoming 3582(c) proceeding
would be sufficient, the record is silent on the court’s
reasoning on this issue.
We conclude that the record is insufficient to
determine whether the district court knew that it had the
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discretion to consider the sentencing disparity and, if so, what
its reasoning was in deciding to decline to exercise its
discretion. We therefore vacate the sentencing and § 3582(c)
orders and remand the sentence for the district court to address
Boomer’s sentencing disparity argument. We note that the
district court may then need to revise its decision when
reentering its order regarding the § 3582(c) motion. However,
we do not express an opinion on the merits of Boomer’s
sentencing disparity argument or the resolution of the § 3582(c)
motion.
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.
VACATED AND REMANDED
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