Filed: Apr. 29, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4124 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY WAYNE THOMPSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00496-WO-1) Submitted: March 21, 2011 Decided: April 29, 2011 Before SHEDD, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael E. Arche
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4124 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY WAYNE THOMPSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00496-WO-1) Submitted: March 21, 2011 Decided: April 29, 2011 Before SHEDD, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael E. Archen..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4124
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY WAYNE THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00496-WO-1)
Submitted: March 21, 2011 Decided: April 29, 2011
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. John W. Stone,
Jr., Acting United States Attorney, Terry M. Meinecke, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Wayne Thompson appeals his 120-month sentence
imposed after a guilty plea to one count of distribution of
cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
(2006). We affirm.
Thompson, who twice sold cocaine base to an undercover
police officer, also sold a hand grenade simulator and a ground
burst simulator to the same officer. Thompson’s Presentence
Investigation Report (“PSR”) recommended a two-level enhancement
to his offense level for possession of a dangerous weapon. The
district court overruled Thompson’s objection to the
enhancement. Thompson challenges that enhancement on appeal,
claims that the district court imposed a procedurally
unreasonable sentence, and argues that a remand is necessary in
light of the Fair Sentencing Act of 2010.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn,
592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory guideline range, this court must decide
whether the district court considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed the arguments presented by the parties,
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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 of procedural error
are subject to harmless error review.
Lynn, 592 F.3d at 576.
If the sentence is free of significant procedural error, the
appellate court reviews the substantive reasonableness of the
sentence.
Id. at 575; United States v. Pauley,
511 F.3d 468,
473 (4th Cir. 2007).
I. Sentence Enhancement
Under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(2009), a district court must increase a defendant’s offense
level two levels if the defendant possessed a dangerous weapon
during a drug offense. USSG § 2D1.1(b)(1). The enhancement is
proper when “the weapon was possessed in connection with drug
activity that was part of the same course of conduct or common
scheme as the offense of conviction.” United States v. Manigan,
592 F.3d 621, 628-29 (4th Cir. 2010) (internal quotation marks
omitted). Whether the district court properly applied the
enhancement under USSG § 2D1.1(b)(1) is reviewed for clear
error. United States v. McAllister,
272 F.3d 228, 234
(4th Cir. 2001). Under a clear error standard of review, this
court will reverse only if “left with the definite and firm
conviction that a mistake has been committed.” United States v.
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Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation
marks omitted).
The definition of “dangerous weapon” is found in the
commentary to USSG § 1B1.1. That section defines dangerous
weapon as
(i) an instrument capable of inflicting death or
serious bodily injury; or (ii) an object that is not
an instrument capable of inflicting death or serious
bodily injury but (I) closely resembles such an
instrument; or (II) the defendant used the object in a
manner that created the impression that the object was
such an instrument.
USSG § 1B1.1, comment. (n.1(D)). Thompson argues that the
devices were neither dangerous weapons, nor did they resemble
dangerous weapons because each was labeled “simulator.” The
court accurately observed, however, that each simulator was
labeled “explosive” and each actually resembled the weapon it
was designed to simulate. In addition, the court emphasized
that the warning labels on the stimulators state that the user
should immediately throw the simulators after removing the
safety caps or pulling the detonation cords. On these facts, we
conclude that the district court did not clearly err in imposing
the USSG § 2D1.1 enhancement.
II. Explanation of Sentence
Thompson next argues that the court offered an
inadequate explanation of his sentence, despite the fact that he
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requested a variance. While the district court must conduct an
individualized assessment of the defendant, the 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) (quoting Rita v. United States,
551 U.S. 338,
356 (2007)). But when a sentencing court decides to simply
apply the Guidelines, “doing so will not necessarily require
lengthy explanation.”
Rita, 551 U.S. at 356. As we recently
stated:
Gall was quite explicit that district courts should
provide more significant justifications for major
departures than for minor ones. But when a district
court does not depart or vary at all, it may provide a
less extensive, while still individualized,
explanation. This is because guidelines sentences
themselves are in many ways tailored to the individual
and reflect approximately two decades of close
attention to federal sentencing policy.
United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009),
cert. denied, Martin v. United States,
130 S. Ct. 2128 (2010).
(internal citations, quotation marks and brackets omitted).
We conclude that Thompson’s claim is without merit.
The district court discussed the seriousness of trying to sell
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explosives in the course of a drug transaction, noted Thompson’s
escalating criminal history, and, while recognizing the
disparity between powder cocaine and cocaine base, declined to
vary in light of the seriousness of the offense. We decline to
disturb the sentence as unreasonable.
III. Fair Sentencing Act
Thompson also requests that his sentence be vacated
and remanded in light of the Fair Sentencing Act of 2010. The
Fair Sentencing Act, which reduces the cocaine/cocaine base
disparity by amending the drug quantities triggering the
statutory penalties, is not retroactive but only applicable to
defendants who commit their offenses after its effective date.
See United States v. Diaz, 627 F.3d 930, 931 (2d 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), cert. denied, ___ U.S.L.W.
___ (U.S. Mar. 21, 2011) (No. 10-8937). Since Thompson’s
offense predates the effective date of the Fair Sentencing Act,
it does not apply to his case.
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Accordingly, we deny Thompson’s motion for leave to
file a pro se supplemental brief and affirm the judgment of 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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