Certiorari granted, June 29, 2012 Vacated by Supreme Court, June 29, 2012
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 11-4280
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL LAMONT BOOMER,
Defendant - Appellant.
Appeal 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 31, 2011 Decided: November 10, 2011
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph R. Pope, WILLIAMS MULLEN, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Angela Mastandrea-Miller, Richard D. Cooke, Assistant United States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Michael Boomer appeals from the sentence imposed after
he was resentenced on remand from an appeal from the sentence
imposed after relief was granted under 28 U.S.C.A. § 2255 (West
Supp. 2011) and 18 U.S.C. § 3582(c) (2006). Boomer was found
guilty after a jury trial of possession with the intent to
distribute fifty grams or more of cocaine base, possession with
the intent to distribute marijuana, and possession of a firearm
in furtherance of a drug trafficking crime. Boomer argues that
statutory mandatory minimum sentences applicable in his case
violate the separation of powers doctrine. He also argues that
his sentence is substantively unreasonable. Finding no error,
we affirm.
Boomer argues that statutory mandatory minimum
sentences applicable in his case violate the separation of
powers doctrine because they relegate the sentencing role of the
judiciary to administering the sentence without having the
individual discretion to impose a sentence that the court
chooses. He argues that the executive branch should not
establish punishments for crimes.
Boomer did not raise this issue in the district court;
therefore, it is reviewed for plain error. Generally, this
court reviews de novo a district court’s ruling on a
constitutional challenge to a statute. United States v.
2 Buculei, 262 F.3d 322, 327 (4th Cir. 2001). When a defendant
fails to timely raise a constitutional challenge in the district
court, however, this court reviews the issue for plain error.
United States v. Olano, 507 U.S. 725, 732-33 (1993). Because
Boomer only asserted his separation of powers argument on
appeal, his claim is reviewed to determine whether (1) there was
error; (2) that was plain; and (3) that affected substantial
rights. Olano, 507 U.S. at 732-35.
We conclude that Boomer’s constitutional challenge is
without merit and that the district court properly considered
itself constrained by the applicable statutory minimum sentence.
See Harris v. United States, 536 U.S. 545, 568-69 (2002)
(recognizing criticisms of mandatory minimum sentencing
provisions, but not holding them unconstitutional); Chapman v.
United States, 500 U.S. 453, 467 (1991) (noting that determinate
sentences are not unconstitutional); United States v. Gonzalez-
Ramirez, 561 F.3d 22, 30 (1st Cir. 2009) (deciding that
prosecutor’s discretion to seek enhanced minimum sentence does
not violate separation of powers doctrine), cert. denied, 130 S.
Ct. 524 (2009).
Boomer argues that his 125-month sentence on count one
is substantively unreasonable because the factors the district
court relied upon in imposing the sentence were already
considered legislatively when calculating the mandatory minimum
3 sentence or were taken into account in the sentence imposed for
possession of a firearm in furtherance of a drug trafficking
crime. Boomer argues specifically that the court abused its
discretion because the court considered his thirteen
misdemeanors, which he states are not offenses under the
Guidelines warranting a greater sentence, that the court erred
in finding that he was “more than a casual distributor,” of
drugs in light of the three bags of fifty-nine grams of crack
cocaine in his possession, and that his possession of a firearm
and bulletproof vest were acts punished under his § 924(c)
conviction and should not be considered to increase his
possession with intent to distribute sentence.
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). A
sentence imposed within the properly calculated Guidelines range
is presumed reasonable by this court. United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
First, the court did not err in considering Boomer’s
thirteen misdemeanor convictions. Not all of the convictions
were counted for purposes of criminal history points, but it is
clear from the transcript that the court concluded that the
4 multiple convictions demonstrated a regular pattern of
violations and indifference toward the law.
Next, Boomer contends that his sentence was
unreasonable because the court noted that, based on the
quantities involved, he was more than a casual distributor.
Boomer had been convicted of possession with intent to
distribute, and the court is required to sentence in compliance
with the jury’s verdict. United States v. Curry, 461 F.3d 452,
460-61 (4th Cir. 2006).
Finally, Boomer claims that the district court’s
reliance on his possession of a firearm and bullet-resistant
vest was error and makes his sentence substantively unreasonable
because this conduct was punished in count three, under
§ 924(c), and should not be used to increase his sentence above
the mandatory minimum for count one. Boomer is incorrect
regarding the bulletproof vest; he did not receive an
enhancement based on the vest. The possession of a vest may be
deemed an aggravating fact, demonstrating a deeper level of
distribution activity requiring serious safety measures.
Although the possession of a firearm was the subject of the
§ 924(c) count, the court’s reasoning appears to indicate that
the possession it referred to was a part of a pattern of
defiance of the law and immersion in drug trafficking.
5 Consideration of the substantive reasonableness of a
sentence requires an assessment of the totality of circumstances
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Certiorari granted, June 29, 2012 Vacated by Supreme Court, June 29, 2012
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 11-4280
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL LAMONT BOOMER,
Defendant - Appellant.
Appeal 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 31, 2011 Decided: November 10, 2011
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph R. Pope, WILLIAMS MULLEN, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Angela Mastandrea-Miller, Richard D. Cooke, Assistant United States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Michael Boomer appeals from the sentence imposed after
he was resentenced on remand from an appeal from the sentence
imposed after relief was granted under 28 U.S.C.A. § 2255 (West
Supp. 2011) and 18 U.S.C. § 3582(c) (2006). Boomer was found
guilty after a jury trial of possession with the intent to
distribute fifty grams or more of cocaine base, possession with
the intent to distribute marijuana, and possession of a firearm
in furtherance of a drug trafficking crime. Boomer argues that
statutory mandatory minimum sentences applicable in his case
violate the separation of powers doctrine. He also argues that
his sentence is substantively unreasonable. Finding no error,
we affirm.
Boomer argues that statutory mandatory minimum
sentences applicable in his case violate the separation of
powers doctrine because they relegate the sentencing role of the
judiciary to administering the sentence without having the
individual discretion to impose a sentence that the court
chooses. He argues that the executive branch should not
establish punishments for crimes.
Boomer did not raise this issue in the district court;
therefore, it is reviewed for plain error. Generally, this
court reviews de novo a district court’s ruling on a
constitutional challenge to a statute. United States v.
2 Buculei, 262 F.3d 322, 327 (4th Cir. 2001). When a defendant
fails to timely raise a constitutional challenge in the district
court, however, this court reviews the issue for plain error.
United States v. Olano, 507 U.S. 725, 732-33 (1993). Because
Boomer only asserted his separation of powers argument on
appeal, his claim is reviewed to determine whether (1) there was
error; (2) that was plain; and (3) that affected substantial
rights. Olano, 507 U.S. at 732-35.
We conclude that Boomer’s constitutional challenge is
without merit and that the district court properly considered
itself constrained by the applicable statutory minimum sentence.
See Harris v. United States, 536 U.S. 545, 568-69 (2002)
(recognizing criticisms of mandatory minimum sentencing
provisions, but not holding them unconstitutional); Chapman v.
United States, 500 U.S. 453, 467 (1991) (noting that determinate
sentences are not unconstitutional); United States v. Gonzalez-
Ramirez, 561 F.3d 22, 30 (1st Cir. 2009) (deciding that
prosecutor’s discretion to seek enhanced minimum sentence does
not violate separation of powers doctrine), cert. denied, 130 S.
Ct. 524 (2009).
Boomer argues that his 125-month sentence on count one
is substantively unreasonable because the factors the district
court relied upon in imposing the sentence were already
considered legislatively when calculating the mandatory minimum
3 sentence or were taken into account in the sentence imposed for
possession of a firearm in furtherance of a drug trafficking
crime. Boomer argues specifically that the court abused its
discretion because the court considered his thirteen
misdemeanors, which he states are not offenses under the
Guidelines warranting a greater sentence, that the court erred
in finding that he was “more than a casual distributor,” of
drugs in light of the three bags of fifty-nine grams of crack
cocaine in his possession, and that his possession of a firearm
and bulletproof vest were acts punished under his § 924(c)
conviction and should not be considered to increase his
possession with intent to distribute sentence.
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). A
sentence imposed within the properly calculated Guidelines range
is presumed reasonable by this court. United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
First, the court did not err in considering Boomer’s
thirteen misdemeanor convictions. Not all of the convictions
were counted for purposes of criminal history points, but it is
clear from the transcript that the court concluded that the
4 multiple convictions demonstrated a regular pattern of
violations and indifference toward the law.
Next, Boomer contends that his sentence was
unreasonable because the court noted that, based on the
quantities involved, he was more than a casual distributor.
Boomer had been convicted of possession with intent to
distribute, and the court is required to sentence in compliance
with the jury’s verdict. United States v. Curry, 461 F.3d 452,
460-61 (4th Cir. 2006).
Finally, Boomer claims that the district court’s
reliance on his possession of a firearm and bullet-resistant
vest was error and makes his sentence substantively unreasonable
because this conduct was punished in count three, under
§ 924(c), and should not be used to increase his sentence above
the mandatory minimum for count one. Boomer is incorrect
regarding the bulletproof vest; he did not receive an
enhancement based on the vest. The possession of a vest may be
deemed an aggravating fact, demonstrating a deeper level of
distribution activity requiring serious safety measures.
Although the possession of a firearm was the subject of the
§ 924(c) count, the court’s reasoning appears to indicate that
the possession it referred to was a part of a pattern of
defiance of the law and immersion in drug trafficking.
5 Consideration of the substantive reasonableness of a
sentence requires an assessment of the totality of circumstances
underlying the sentence, including the extent of any variance
from the Guidelines range. United States v. Abu Ali, 528 F.3d
210, 261 (4th Cir. 2008). Viewing the totality of the evidence,
we conclude that the 125-month sentence, five months above the
mandatory minimum and including a downward variance, was not an
abuse of discretion and therefore the sentence is reasonable.
For the first time in his reply brief, Boomer argues
that the Fair Sentencing Act should have applied to him at
resentencing. In the district court he conceded that the Fair
Sentencing Act did not apply. He also concedes in his reply
brief that his opening brief did not raise the issue. The court
will not consider issues raised for the first time in a reply
brief. See United States v. Brooks, 524 F.3d 549, 556 n.11 (4th
Cir. 2008); Yousefi v. United States INS, 260 F.3d 318, 326 (4th
Cir. 2001) (“Because [the] opening brief fails to raise a
challenge to [a basis for the agency’s decision], he has
abandoned it. The fact that [he] pursues this issue in his
reply brief does not redeem his failure to do so in the opening
brief.” (internal citations omitted)); Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). We therefore
decline to consider the issue.
6 Accordingly, we affirm the criminal judgment. Because
there is no error in the resentencing and Boomer did not raise
any issues specific to the order reducing his sentence, we also
affirm the district court’s order granting a sentence reduction
under § 3582(c). 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