United States v. Boomer

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

2
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.

3
 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

4
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

5