Filed: Sep. 06, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4037 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MICHAEL EUGENE GOODWIN, a/k/a D.C., a/k/a D.C. Mike, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (7:09-cr-00065-H-1) Submitted: August 9, 2011 Decided: September 6, 2011 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished pe
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4037 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MICHAEL EUGENE GOODWIN, a/k/a D.C., a/k/a D.C. Mike, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (7:09-cr-00065-H-1) Submitted: August 9, 2011 Decided: September 6, 2011 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4037
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL EUGENE GOODWIN, a/k/a D.C., a/k/a D.C. Mike,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (7:09-cr-00065-H-1)
Submitted: August 9, 2011 Decided: September 6, 2011
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Eugene Goodwin pled guilty in accordance with
a written plea agreement to possession with intent to distribute
heroin, 21 U.S.C. § 841(a) (2006), and was sentenced to 168
months in prison. Goodwin now appeals. His attorney has filed
a brief in accordance with Anders v. California, 386 U.S. 738
(1967), challenging the sentence but stating that there are no
meritorious issues for review. Goodwin was advised of his right
to file a pro se supplemental brief but has not filed such a
brief. We affirm.
I
According to the presentence investigation report
(PSR), Goodwin was responsible for 2.4 grams of heroin and 450
grams of cocaine base, for a marijuana equivalent of 9,002.4
kilograms. His base offense level was 34. See U.S. Sentencing
Guidelines Manual § 2D1.1(c)(3) (2008). This was reduced by two
levels pursuant to USSG § 2D1.1 cmt. n.10(D)(i). His base
offense level under the Drug Quantity Table accordingly was 32.
Goodwin was a career offender. See USSG § 4B1.1(a)
(2008). Because the maximum penalty to which he was subject was
twenty years in prison, see 21 U.S.C. § 841(b)(1)(C) (2006), his
offense level as a career offender also was 32. See USSG
§ 4B1.1(b)(C).
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Three levels were subtracted based on acceptance of
responsibility. See USSG § 3E1.1. Goodwin’s total offense
level was 29. He had twenty criminal history points, placing
him in criminal history category VI. As a career offender, his
criminal history category also was VI. See USSG § 4B1.1(b).
Goodwin’s advisory Guidelines range was 151-188 months.
Goodwin objected to the quantity of drugs considered
to be relevant conduct—specifically, to 434 grams of crack
cocaine attributed to him by Shawn Powell. After hearing
testimony, the district court found by a preponderance of the
evidence that Goodwin was accountable for the amount of drugs
set forth in the PSR, including the 434 grams of crack in
question.
The court sentenced Goodwin to 168 months in prison.
In imposing sentence, the court considered the 18 U.S.C.
§ 3553(a) (2006) factors. The court stated that it had selected
a sentence in the middle of the Guidelines range because of
Goodwin’s lengthy criminal record, history of assault, and
disregard for prior periods of supervision.
II
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
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procedural and substantive reasonableness of the sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court correctly
calculated the defendant’s advisory Guidelines range, we must
decide whether the court considered the § 3553(a) factors,
analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence.
Lynn, 592 F.3d at
575-76; see United States v. Carter,
564 F.3d 325, 330 (4th Cir.
2009). Properly preserved claims are subject to harmless error
review.
Lynn, 592 F.3d at 576. If the sentence is free of
significant procedural error, we then review the substantive
reasonableness of the sentence.
Id. at 575; United States v.
Pauley,
511 F.3d 468, 473 (4th Cir. 2007).
Goodwin first claims that he was improperly treated as
a career offender. Our review of the record strongly suggests
that Goodwin was a career offender. See USSG § 4B1.1(a).
However, we need not conclusively determine this issue because
any error was harmless. Whether calculated based on his career
offender status or under the Drug Quantity Table, Goodwin’s
total offense level was 29. Further, his criminal history
category as a career offender was VI, and he had twenty criminal
history points, also placing him in category VI. Thus,
Goodwin’s advisory Guidelines range was 151-188 months
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regardless of whether the range was calculated based on career
offender status or the Drug Quantity Table.
Goodwin also claims that crack cocaine was improperly
treated as relevant conduct because he was charged only with a
heroin offense. This claim lacks merit. It is well established
that a sentencing court may, consistent with the Sixth
Amendment, consider uncharged conduct in determining the
sentence, as long as the conduct is established by a
preponderance of the evidence. United States v. Grubbs, 585
F.3d 793, 799 (4th Cir. 2009), cert. denied,
130 S. Ct. 1923
(2010). Our review of the record supports the district court’s
treating both crack and heroin as relevant conduct for
Guidelines purposes.
Finally, Goodwin argues that the Government
erroneously failed to move for a downward departure based on his
substantial assistance. The decision whether to file a USSG
§ 5K1.1 motion lies solely within the Government’s discretion.
United States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001).
Thus, unless the Government has obligated itself in the plea
agreement to make such a motion, its refusal to do so is not
reviewable absent evidence of an unconstitutional motive.
Wade v. United States,
504 U.S. 181, 185-87 (1992);
Butler, 272
F.3d at 686.
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Here, nothing in Goodwin’s plea agreement obligated
the United States to make a § 5K1.1 motion. The agreement
provided in pertinent part:
That [the United States] will make known to
the Court at sentencing the full extent of
the Defendant’s cooperation, but the United
States is not promising to move for
departure pursuant to USSG § 5K1.1, 18
U.S.C. § 3553(e), or Fed. R. Crim. P. 35.
There is no evidence that the failure to move for a departure
resulted from an unconstitutional motive.
We conclude that Goodwin’s sentence is procedurally
and substantively reasonable. See Gall v. United States, 552
U.S. at 51. The court properly calculated Goodwin’s advisory
Guidelines range, considered the pertinent § 3553(a) factors,
considered the parties’ arguments, and sufficiently explained
the sentence. See id.; United States v. Evans,
526 F.3d 155,
161 (4th Cir. 2008).
III
After reviewing the entire record in accordance with
Anders, we find that there are no meritorious issues for appeal.
We therefore affirm. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that
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such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel=s
motion must state that a copy of the motion was served on his
client. 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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