United States v. Boomer

• Decision Date: 10 November 2011
• Docket Number: No. 11-4280,11-4280
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL LAMONT BOOMER, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL LAMONT BOOMER, Defendant - Appellant.

No. 11-4280

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Submitted: October 31, 2011

Decided: November 10, 2011

UNPUBLISHED

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)

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.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 minimumsentence 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 themultiple 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, ...