UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4956
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT EARL LOWRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (2:02-cr-00013-F-1)
Submitted: November 29, 2010 Decided: December 23, 2010
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kelly L. Greene, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Earl Lowry appeals the 195-month sentence
imposed by the district court after his case was remanded for a
fourth sentencing hearing so that the district court could
reconsider the previously imposed 228-month sentence in light of
Kimbrough v. United States, 552 U.S. 85 (2007) (holding that
sentencing court may vary below guideline range based on
disparity between crack and powder cocaine sentencing scheme).
Lowry argues that the district court erred by denying his
request for a downward variance based on issues not relevant to
the crack/cocaine sentencing disparity, and failed to address on
the merits his argument concerning disparity by either
specifically accepting the current ratio or adopting its own.
We affirm.
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 guideline
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
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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,
131 S. Ct. 165 (2010)).
Lowry concedes that the district court correctly
determined his guideline range, but contends that the district
court failed to address his arguments for a variance, “gave no
reasoned explanation as to whether or not [it] accepted the
sentencing disparity between crack and powder cocaine,” and
“denied the variance request on irrelevant considerations[.]”
However, the district court clearly stated that it understood
its authority to deviate from the guidelines based on the
continued crack/cocaine sentencing disparity. The court did not
reject the current guideline sentencing scheme, but complied
with our mandate to reconsider the sentence in light of
Kimbrough.
In Spears v. United States, 129 S. Ct. 840 (2009), the
Supreme Court acknowledged that Kimbrough stood for the
proposition that sentencing courts have the “authority to vary
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from the crack cocaine guidelines based on policy disagreement
with them, and not simply based on an individualized
determination that they yield an excessive sentence in a
particular case.” Spears, 129 S. Ct. at 843. Spears does not
hold that a district court must vary from the guidelines or
state what it believes the ratio should be. See id. at 844 (“we
now clarify that district courts are entitled to reject and vary
categorically from the crack-cocaine Guidelines based on a
policy disagreement with those Guidelines”).
We conclude that the district court indicated with
sufficient clarity its response to the parties’ arguments and
that the sentence is procedurally and substantively reasonable.
See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008)
(applying presumption of substantive reasonableness to within-
guideline sentence). 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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