UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4925
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID L. HOWARD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:04-cr-00271-RJC-2)
Submitted: November 4, 2010 Decided: December 2, 2010
Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Peter S.
Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
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Unpublished opinions are not binding precedent in this circuit.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:
David L. Howard appeals his conviction and life
sentence for one count of conspiracy to commit offenses against
the United States in violation of 18 U.S.C. § 371 (2006), ten
counts of interstate wire transfer of funds in aid of
racketeering enterprises in violation of 18 U.S.C. §§ 1952(a), 2
(2006), one count of conspiracy to commit money laundering in
violation of 18 U.S.C. § 1956(h) (2006), one count of conspiracy
to possess with intent to distribute cocaine base and using a
person under eighteen years of age in furtherance thereof in
violation of 21 U.S.C. §§ 846, 841, 861 (2006), and two counts
of possession with intent to distribute cocaine base and aiding
and abetting the same in violation of 21 U.S.C. § 841, 18 U.S.C.
§ 2. We affirm.
Howard was convicted of the offenses in 2006. Upon
consideration of the issues raised in his initial appeal, we
affirmed his convictions but vacated his sentence after
concluding that the district court improperly imposed an
enhancement to his offense level for being a leader of the money
laundering conspiracy. At resentencing, the district court
again imposed a life sentence. Howard now argues that the
district court (1) erred in imposing a sentence enhancement
based on acquitted conduct and (2) imposed a substantively
unreasonable sentence. We do not agree with either contention.
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An appellate court reviews a sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. First, the court must 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)
(same). An extensive explanation is not required as long as the
appellate court is satisfied “‘that [the district court] has
considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.’” United
States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting
Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied,
___U.S.___, 2010 WL 23245029 (October 4, 2010).
I. Firearms Enhancement
Howard was indicted for use of a firearm in
furtherance of a drug trafficking offense in violation of 18
U.S.C. §§ 924(c), 2 (2006) and one count of possession of a
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firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (2006).
The jury acquitted him of both counts, but at sentencing, his
offense level was enhanced two levels pursuant to U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (2009). On appeal,
he argues that his Sixth Amendment rights were violated by
enhancing his sentence based on facts that were not found beyond
a reasonable doubt by a jury. The merits of his claim aside, we
have previously considered and rejected this argument. See
United States v. Perry, 560 F.3d 654 (4th Cir.), cert. denied,
130 S. Ct. 177 (2009). A panel of this court cannot overrule
the decision of a prior panel. United States v. Simms, 441 F.3d
313, 318 (4th Cir. 2006).
II. Substantive Reasonableness
Howard next claims that the district court erred in
failing to award a variance in light of the disparity between
powder cocaine and “crack” cocaine sentences.
Even if the sentence is procedurally reasonable, the
court must consider the substantive reasonableness of the
sentence, “examin[ing] 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). Moreover, this court applies a presumption of
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reasonableness to within-guidelines sentences. See, e.g.,
United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).
We have reviewed the record and we conclude that the
district court was aware that it could impose a variance, but
conscientiously declined to do so. Howard argues that such a
variance was required in light of the crack/powder cocaine
sentencing disparity, but we do not agree. We conclude that
Howard has failed to rebut the presumption of reasonableness
accorded to his within-guidelines sentence.
We therefore affirm the judgment of 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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