UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4524
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO GOMEZ DURAN, a/k/a Grenas,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00296-TDS-1)
No. 11-4597
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PABLO MORA DOROTEO,
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. (1:10-cr-00296-NCT-2)
Submitted: February 21, 2012 Decided: March 2, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bradley L. Henry, BREEDING & DOTHARD, LLC, Knoxville, Tennessee,
for Appellant Francisco Duran; Michael E. Archenbronn, Winston-
Salem, North Carolina, for Appellant Pablo Doroteo. Ripley
Rand, United States Attorney, Randall S. Galyon, Assistant
United States Attorney, Andrew C. Cochran, Special Assistant
United States Attorney, Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Francisco Gomez Duran and Pablo Mora Doroteo were
charged in a ten-count indictment with various drug trafficking
and firearms offenses. Duran pled guilty to conspiracy to
distribute fifty grams or more of a mixture and substance
containing methamphetamine, in violation of 21 U.S.C. § 846
(2006) (Count One), and the district court sentenced him to 120
months’ imprisonment. Doroteo pled guilty to conspiracy to
distribute fifty grams or more of a mixture and substance
containing methamphetamine, in violation of 21 U.S.C. § 846
(Count One), and possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (2006) (Count Eight). He received a 137-month
sentence: 76 months on Count One and a consecutive 60 months on
Count Eight. In these consolidated appeals, Doran and Doroteo
appeal their sentences.
Focusing first on Duran’s appeal, he challenges the
enhancement of his sentence under 21 U.S.C.A.
§ 841(b)(1)(B)(viii) (West 1999 & Supp. 2011). Under this
provision, the statutory penalty of five to forty years’
imprisonment for a drug trafficking offense involving fifty
grams or more of a mixture or substance containing a detectable
amount of methamphetamine increases to ten years to life if the
defendant commits the offense “after a prior conviction for a
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felony drug offense has become final.” Id. “The term ‘felony
drug offense’ means an offense that is punishable by
imprisonment for more than one year under any law . . . that
prohibits or restricts conduct related to narcotic drugs.” 21
U.S.C.A. § 802(44) (West 1999 & Supp. 2011).
The district court enhanced Duran’s sentence under
§ 841(b)(1)(B) based on his 2005 North Carolina conviction for
felony attempt to traffic in cocaine. At the time of Duran’s
sentencing for his federal offense, the controlling precedent in
this Circuit was United States v. Harp, 406 F.3d 242 (4th Cir.
2005). Harp held that a prior North Carolina conviction was a
crime punishable by more than a year in prison if, under North
Carolina’s structured sentencing scheme, “the maximum aggravated
sentence that could be imposed for that crime upon a defendant
with the worst possible criminal history” exceeded twelve
months. Id. at 246 (emphasis omitted). This court subsequently
overruled Harp in United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc), holding that whether a particular North
Carolina felony was punishable by more than a year in prison
depended on the maximum sentence for which a particular
defendant was eligible, based on his own criminal history,
rather than the maximum sentence for the same crime that could
be imposed on a defendant with the worst possible criminal
record. Id. at 241-47.
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Relying on the then-existent precedent in Harp, the
district court concluded that Duran’s North Carolina offense
qualified as a felony drug offense because the maximum penalty
for such a crime was thirty-eight months in prison. Duran
contends that his sentence must be vacated in light of Simmons
and remanded for a determination of whether his prior offense
was punishable by more than a year in prison. However, Duran
received a twelve-to-fifteen month prison term for his North
Carolina offense. Because Duran was personally exposed to a
maximum sentence of imprisonment for more than a year, his prior
drug offense qualified as a “felony drug offense” for purposes
of § 841(b)(1)(B).
Duran also argues that the § 841(b)(1)(B) enhancement
for a prior felony drug offense violates the Double Jeopardy
Clause. As Duran acknowledges, “the Supreme Court has
consistently rejected double jeopardy challenges to sentencing
schemes that enhance a defendant’s sentence because of a prior
conviction.” United States v. Ambers, 85 F.3d 173, 178 (4th
Cir. 1996) (citing Witte v. United States, 515 U.S. 389, 400
(1995)). Duran seeks a change in the law. However, “[w]hile
the Supreme Court may certainly overrule [its own precedent],
. . . that is not our role.” United States v. Harris, 243 F.3d
806, 809 (4th Cir. 2001). We therefore affirm Duran’s sentence.
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Turning to Doroteo’s appeal, he contends that his
sentence is unreasonable because the district court failed to
provide an individualized assessment of the applicable 21 U.S.C.
§ 3553(a) (2006) sentencing factors or articulate why it
rejected his argument for a below-Guidelines sentence. A
district court is not required to “robotically tick through
§ 3553(a)’s every subsection” on the record. United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006). The sentencing
court’s explanation must be “sufficient ‘to satisfy the
appellate court that [the district court] has considered the
parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority.’” United States v.
Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (alteration in
original; quoting Rita v. United States, 551 U.S. 338, 356
(2007)).
Reasons articulated by a district court for a given
sentence need not be “couched in the precise language of
§ 3553(a)” as long as the “reasons can be matched to a factor
appropriate for consideration under that statute and [are]
clearly tied to [the defendant’s] particular situation.” United
States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). After
reviewing the record, we conclude that the district court
analyzed the arguments presented by the parties and gave a
sufficient explanation for the sentence it selected. Although
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the court did not couch its analysis in the precise statutory
language, consideration of the § 3553(a) factors was implicit in
the district court’s reasoning. Moreover, we conclude that the
court adequately addressed Doroteo’s arguments for a below-
Guidelines sentence and that Doroteo failed to rebut the
presumption of reasonableness accorded his within-Guidelines
sentence. United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010).
For these reasons, we affirm Duran’s and Doroteo’s
sentences. 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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