United States v. Ruthus Ivey

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 18, 2018
• Docket: 17-4629
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4629

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RUTHUS AZAM IVEY, a/k/a Toot,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cr-00042-FDW-DSC-4)

Submitted: May 17, 2018 Decided: May 18, 2018

Before KING and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Haakon Thorsen, THORSEN LAW OFFICES, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Ruthus Azam Ivey pled guilty to conspiracy to possess with intent to distribute

crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), & 846 (2012) (Count 1),

conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), & 846 (2012) (Count 2), and possession with intent to distribute

cocaine, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18

U.S.C. § 2 (2012) (Count 57). He timely appealed. Ivey’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no

appealable issues, but questioning whether the district court violated the prohibition

against double jeopardy and challenging the reasonableness of the sentence. Although

advised of his right to file a pro se supplemental brief, Ivey did not file one. The

Government has declined to file a response brief. For the reasons that follow, we affirm.

Counsel for Ivey contends that the district court violated the prohibition against

double jeopardy by imposing judgment on both the crack conspiracy and the cocaine

conspiracy counts. Under Blockberger v. United States, 284 U.S. 299 (1932), separate

penalties may be imposed based on a single act or transaction if each crime requires proof

of an element that the other does not. Id. at 304. Here, the crack cocaine and powder

cocaine conspiracy offenses are distinct under Blockberger because each requires an

element that the other does not: namely, the identity of the drug. United States v. Davis,

55 F.3d 517, 521 (10th Cir. 1994) (holding that “[p]ossession with intent to distribute

crack and possession with intent to distribute powder cocaine are separate offenses for

double jeopardy purposes”); cf. United States v. Travillion, 759 F.3d 281, 298 (3d Cir.

2 2014) (“Congress intentionally created separate statutory provisions and, more

importantly, separate punishments” for crack and powder cocaine). Thus, Ivey’s

protection against double jeopardy was not compromised.

Next, Ivey challenges his sentence. We review a sentence for reasonableness,

applying “a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38,

46 (2007). We first ensure that the court “committed no significant procedural error,”

such as improper calculation of the Sentencing Guidelines, insufficient consideration of

the 18 U.S.C. § 3553(a) (2012) factors, or inadequate explanation of the sentence

imposed. United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (internal quotation

marks omitted). If we find the sentence procedurally reasonable, we also review its

substantive reasonableness under “the totality of the circumstances.” Gall, 552 U.S. at

51. We presume that a within-Guidelines sentence is substantively reasonable. United

States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Ivey bears the burden to rebut this

presumption “by showing that the sentence is unreasonable when measured against the 18

U.S.C. § 3553(a) factors.” Id.

Our review of the record convinces us that Ivey’s sentence is reasonable. The

court properly calculated the applicable Sentencing Guidelines range, considered the

parties’ sentencing arguments, and provided a reasoned explanation for the sentence it

imposed, grounded in the § 3553(a) factors. Although Ivey argues that the court erred by

applying criminal history points to convictions he claims were expunged, the documents

he submitted show that some convictions were expunged but not the criminal domestic

violence and crack distribution convictions for which he was assigned criminal history

3 points. Furthermore, we conclude that the district court did not err in assigning a

criminal history point to Ivey’s criminal domestic violence conviction, because sentence

was imposed for that offense within 10 years of the commencement of the instant

offenses. U.S. Sentencing Guidelines Manual § 4A1.2(e)(2) (2016).

In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious issues for appeal. We therefore affirm the district court’s

judgment. This court requires that counsel inform Ivey, in writing, of the right to petition

the Supreme Court of the United States for further review. If Ivey requests that a petition

be filed, but counsel believes that 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 thereof was served on Ivey. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before this court

and argument would not aid the decisional process.

AFFIRMED