Filed: Nov. 24, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4164 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TONY TAYLOR, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:06-cr-00279-D-1) Submitted: October 9, 2008 Decided: November 24, 2008 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Richard Croutharmel, Raleigh
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4164 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TONY TAYLOR, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:06-cr-00279-D-1) Submitted: October 9, 2008 Decided: November 24, 2008 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Richard Croutharmel, Raleigh,..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4164
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TONY TAYLOR,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:06-cr-00279-D-1)
Submitted: October 9, 2008 Decided: November 24, 2008
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Croutharmel, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Tony Taylor was convicted by a jury of conspiracy
involving more than 50 grams of cocaine base (crack), 21 U.S.C.
§ 846 (2000) (Count 1); distribution and possession with intent
to distribute more than 5 grams of crack, 21 U.S.C. § 841(a)(1)
(2000) (Counts 3-7); and distribution and possession with intent
to distribute more than 50 grams of crack, 21 U.S.C. § 841(a)(1)
(Count 8). He received a mandatory life sentence for Counts 1
and 8 under 21 U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2008),
and a career offender sentence of 360 months imprisonment on
Counts 3-7. U.S. Sentencing Guidelines Manual § 4B1.1 (2007).
Taylor appeals his sentence, arguing that the
difference between the statutory mandatory minimum penalties for
crack offenses and powder cocaine offenses creates an
unconstitutional disparity that violates the Equal Protection
Clause. He also argues that his life sentence violates the
Eighth Amendment and that the district court erred in finding
that he had the predicate offenses to qualify for a mandatory
life sentence. In addition, Taylor contends that the district
court sentenced him more harshly because he exercised his right
to trial, and clearly erred in finding that he was a manager or
supervisor in the conspiracy. We affirm.
First, Taylor’s challenge to the constitutionality of
§ 841 is without merit. We have repeatedly rejected claims that
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the sentencing disparity between powder cocaine and crack
offenses violates either equal protection or due process. See
United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997);
United States v. Burgos,
94 F.3d 849, 876-77 (4th Cir. 1996) (en
banc); United States v. Fisher,
58 F.3d 96, 99-100 (4th Cir.
1995). To the extent that Taylor seeks to have this court
reconsider these decisions, 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). Further, the 2007 amendments
to the sentencing guidelines have no effect on the
constitutionality or applicability of the statutory mandatory
minimum sentences for crack offenses, and the Supreme Court’s
decision in Kimbrough v. United States,
128 S. Ct. 558, 575
(2007), that district courts may consider the crack/powder
cocaine sentencing ratio as a possible basis for variance from
the guidelines, is unrelated to the constitutionality of the
sentencing disparity.
Taylor’s claim that a mandatory life sentence under
§ 841 violates the Eighth Amendment because it precludes
individualized sentencing and the consideration of mitigating
factors has been rejected by the Supreme Court in Harmelin v.
Michigan, 501 U.S. 957, 994-96 (1991), and by this court in
United States v. Kratsas,
45 F.3d 63, 68 (4th Cir. 1995).
Taylor also argues that his sentence is disproportionate to his
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crime. However, applying the proportionality test set out in
Solem v. Helm, 463 U.S. 277, 292 (1983), we held in Kratsas that
a mandatory life sentence under § 841 does not violate the
Eighth
Amendment. 45 F.3d at 68. Therefore, this claim fails.
Taylor maintains that he lacked the two prior felony
drug convictions needed to qualify him for the statutory life
sentence under § 841(b)(1)(A) because his state sentencing range
for his 1996 North Carolina drug offense was 8-10 months. A
person convicted of a violation § 841(a) that involved at least
fifty grams of crack, who has two or more prior convictions for
a felony drug offense, is subject to a mandatory term of life
imprisonment under § 841(b)(1)(A). A “felony drug offense” is
defined in 21 U.S.C.A. § 802(44) (West 2000 & Supp. 2008) as a
drug offense “that is punishable by imprisonment for more than
one year” under any federal or state law. Burgess v. United
States, 128 S. Ct. 1572, 1575 (2008).
Taylor concedes that this issue is foreclosed by
United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005)
(holding that, to determine whether crime is punishable by term
exceeding one year, court must consider maximum aggravated
sentence that could be imposed on any defendant), because the
maximum possible sentence for the offense was 25-30 months. He
suggests that we reconsider our decision in Harp. Because one
panel of this court may not overrule the decision of another
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panel, see Simms, 441 F.3d at 318, the district court did not
err in finding that Taylor had the necessary predicate offenses
to qualify for the mandatory life sentence.
Taylor argues that the district court clearly erred in
adopting the recommendation in the presentence report for a
three-level role adjustment under USSG § 3B1.1(b). We need not
reach the merits of the issue because a ruling in Taylor’s favor
would not have affected either his mandatory life sentence for
Counts 1 and 8 or his career offender sentence for the remaining
counts.
Last, Taylor asserts that the district court punished
him more harshly than it might have, based on the court’s
comment during its discussion of the sentencing factors in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2008), that “[t]he court
did have a lengthy trial in this matter.” We review a sentence
for abuse of discretion. Gall v. United States, 128 S. Ct. 586,
597 (2007). Our review encompasses both procedural soundness
and substantive reasonableness.
Id. The record in this case
does not support Taylor’s claim. The court imposed the
mandatory life sentence for Counts 1 and 8, and imposed a
sentence at the bottom of the career offender guideline range on
the remaining counts. Applying a presumption of reasonableness
for the guideline sentence, see United States v. Go,
517 F.3d
216, 218 (4th Cir. 2008); see also Rita v. United States, 127 S.
5
Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-guideline sentence), and finding that
Taylor has not rebutted the presumption of reasonableness, we
conclude that his sentence is reasonable.
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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