UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4929
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES FLOYD MCDOUGALD,
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. (1:08-cr-00389-NCT-2)
Submitted: March 17, 2011 Decided: April 1, 2011
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. John W. Stone, Jr., Acting
United States Attorney, Michael F. Joseph, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Floyd McDougald appeals the seventy-month
sentence he received following his guilty plea to conspiracy to
distribute fifty grams or more of cocaine base, in violation of
21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2010) and
21 U.S.C. § 846 (2006). 1 McDougald argues that the recent
changes to the statutory provisions and Sentencing Guidelines
relevant to crack cocaine offenses, enacted vis-à-vis the Fair
Sentencing Act of 2010, 2 apply in this case, and thus serve to
reduce his sentencing range. McDougald asks us to vacate his
sentence and remand this case to the district court for
resentencing pursuant to these amendments.
However, the Fair Sentencing Act, which reduces the
cocaine/cocaine base disparity by amending the drug quantities
triggering the statutory penalties, is not retroactive and is
only applicable to defendants who commit their offenses after
its effective date. McDougald’s criminal conduct predated the
effective date of the Act and thus it does not apply. Accord
1
This sentence, which is well-below the ten-year statutory
mandatory minimum, was the result of McDougald’s qualification
for the “safety valve” provision, codified at 18 U.S.C.
§ 3553(f) (2006), and the district court’s decision to vary
downward from the applicable Guidelines range.
2
Pub. L. No. 111-220, 124 Stat. 2372 (2010) (codified in
scattered sections of 21 U.S.C.)
2
United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010); United
States v. Reevey, 631 F.3d 110, 114-15 (3d Cir. 2010); United
States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010),
petition for cert. filed, __ U.S.L.W. __ (U.S. Feb. 24, 2011)
(No. 10-9224); United States v. Bell, 624 F.3d 803, 814 (7th
Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th
Cir. 2010), petition for cert. filed, __ U.S.L.W. __ (U.S.
Feb. 15, 2011) (No. 10-9271); United States v. Carradine, 621
F.3d 575, 580 (6th Cir. 2010), petition for cert. filed, __
U.S.L.W. __ (U.S. Feb. 10, 2011) (No. 10-8937). Accordingly, we
reject this contention.
To the extent that McDougald appeals the district
court’s determination of the drug quantity attributable to him,
we hold the court did not commit any error, let alone clear
error, in reaching this factual conclusion. See United States
v. Kellam, 568 F.3d 125, 147 (4th Cir.) (providing standard of
review), cert. denied, 130 S. Ct. 657 (2009). The court based
its finding on McDougald’s own statement regarding the drug
amounts that he purchased, and the defendant may be the source
of the estimate for the amount of drugs involved. See United
States v. Hicks, 948 F.2d 877, 883 (4th Cir. 1991) (holding
defendant’s statements made at his arrest could be used in
calculation of drug amounts at sentencing).
3
For the foregoing reasons, we affirm McDougald’s
criminal 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
4