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    1) Reginald Spivey was convicted of drug conspiracy and possession charges and appealed his original sentence, which was vacated and remanded for resentencing in light of Booker. 2) At resentencing, Spivey received the same aggregate 420-month sentence. He appealed, arguing the sentence was unreasonable because the district court did not explicitly state which 18 U.S.C. § 3553(a) factors it considered. 3) The Fourth Circuit affirmed, finding the district court referred to the § 3553(a) factors and considered the presentence report, guidelines, and Spivey's arguments. It said an explicit discussion of each factor is unnecessary for a within-guidelines

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    1) Reginald Spivey was convicted of drug conspiracy and possession charges and appealed his original sentence, which was vacated and remanded for resentencing in light of Booker. 2) At resentencing, Spivey received the same aggregate 420-month sentence. He appealed, arguing the sentence was unreasonable because the district court did not explicitly state which 18 U.S.C. § 3553(a) factors it considered. 3) The Fourth Circuit affirmed, finding the district court referred to the § 3553(a) factors and considered the presentence report, guidelines, and Spivey's arguments. It said an explicit discussion of each factor is unnecessary for a within-guidelines

    Original Description:

    Filed: 2007-07-09 Precedential Status: Non-Precedential Docket: 06-4655

    Original Title

    United States v. Spivey, 4th Cir. (2007)

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    1) Reginald Spivey was convicted of drug conspiracy and possession charges and appealed his original sentence, which was vacated and remanded for resentencing in light of Booker. 2) At resentencing, Spivey received the same aggregate 420-month sentence. He appealed, arguing the sentence was unreasonable because the district court did not explicitly state which 18 U.S.C. § 3553(a) factors it considered. 3) The Fourth Circuit affirmed, finding the district court referred to the § 3553(a) factors and considered the presentence report, guidelines, and Spivey's arguments. It said an explicit discussion of each factor is unnecessary for a within-guidelines

    Copyright:

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    Download as PDF or read online from Scribd
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    Unpublished

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    Scribd Government Docs
    1) Reginald Spivey was convicted of drug conspiracy and possession charges and appealed his original sentence, which was vacated and remanded for resentencing in light of Booker. 2) At resentencing, Spivey received the same aggregate 420-month sentence. He appealed, arguing the sentence was unreasonable because the district court did not explicitly state which 18 U.S.C. § 3553(a) factors it considered. 3) The Fourth Circuit affirmed, finding the district court referred to the § 3553(a) factors and considered the presentence report, guidelines, and Spivey's arguments. It said an explicit discussion of each factor is unnecessary for a within-guidelines

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    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 06-4655

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    REGINALD LARUE SPIVEY, a/k/a Buddy,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
    District Judge. (7:03-cr-00023-H)

    Submitted: May 18, 2007

    Decided:

    July 9, 2007

    Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior


    Circuit Judge.

    Affirmed by unpublished per curiam opinion.

    Joel Merritt Wagoner, WAGONER LAW FIRM, Wilmington, North Carolina,


    for Appellant. George E. B. Holding, United States Attorney, Anne
    M. Hayes, Jennifer P. May-Parker, Assistant United States
    Attorneys, Raleigh, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Reginald

    Larue

    Spivey

    was

    convicted

    by

    jury

    of

    conspiracy to distribute and possess with intent to distribute at


    least 50 grams of cocaine base and at least five kilograms of
    cocaine, in violation of 21 U.S.C. 846 (Count 1); distribution of
    cocaine,

    in

    violation

    of

    21

    U.S.C.

    841(a)(1)

    (Count

    2);

    possession with intent to distribute at least 50 grams of cocaine


    base

    and

    500

    grams

    of

    cocaine,

    in

    violation

    of

    21

    U.S.C.

    841(a)(1) (Count 3); and possession of firearms in furtherance of


    a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1)(2)
    (Count 4).
    420

    The district court sentenced Spivey to an aggregate of

    months

    of

    imprisonment

    under

    the

    then-mandatory

    federal

    sentencing guidelines.
    We previously affirmed Spiveys conviction, but vacated
    his sentence, and remanded for resentencing in accordance with
    United States v. Booker, 543 U.S. 220 (2005), and United States v.
    Hughes, 401 F.3d 540 (4th Cir. 2005).

    At resentencing, the

    district court sentenced Spivey to concurrent 360-month terms of


    imprisonment on Counts 1, 2, and 3, and a consecutive 60-month term
    of imprisonment on Count 4, for an aggregate 420-month term of
    imprisonment, the same sentence imposed originally.

    Spivey again

    appeals, contending that his sentence is unreasonable based upon


    the district courts failure to enunciate which particular 18
    U.S.C. 3553(a) (West 2000 & Supp. 2006), factors it considered in

    - 2 -

    imposing sentence.

    He also challenges this Circuits post-Booker

    standard of review, asserting that the use of the rebuttable


    presumption of reasonableness in review of sentences that are
    within the advisory guideline range is a Sixth Amendment violation.
    We affirm.
    As a preliminary matter, Spivey does not challenge the
    calculation of his advisory guidelines sentencing range.
    he asserts his sentence is unreasonable.

    Rather,

    We have repeatedly held

    that a sentence imposed within a properly calculated guideline


    range is presumed to be reasonable.

    See, e.g., United States v.

    Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006), petition for
    cert. filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439);
    United States v. Johnson, 445 F.3d 339, 341-42 (4th Cir. 2006);
    United States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert.
    denied, 126 S. Ct. 2054 (2006); United States v. Green, 436 F.3d
    449,

    457

    Spiveys

    (4th

    Cir.),

    contention

    cert.

    that

    denied,

    126

    S.

    within-guideline

    Ct.

    2309

    sentence

    (2006).
    is

    not

    entitled to a presumption of reasonableness is unavailing because


    a panel may not overrule another panel.
    285 F.3d 343, 346 (4th Cir. 2002).*

    United States v. Chong,

    Given that Spivey does not

    challenge the advisory guideline range in his case, coupled with


    his failure to provide evidence to overcome the presumption of

    To the extent Spivey is objecting to this courts review


    standards, such a challenge appropriately is made to the United
    States Supreme Court.
    - 3 -

    reasonableness we accord such a sentence, we reject Spiveys claim


    of unreasonableness.
    Moreover, while the district court did not enunciate each
    3553(a) factor it considered prior to imposing sentence on
    Spivey, the court did specifically refer to Booker and to the
    3553(a) factors at the resentencing hearing, stating that it
    specifically considered those factors.
    the

    presentence

    report,

    stating

    that

    It adopted the findings in


    they

    were

    credible

    and

    reliable, and it stated that in addition to the 3553(a) factors,


    the court considered the guidelines range and other relevant
    guideline factors.

    The court was familiar with Spiveys history

    and background, having presided over his trial.

    Also, the court

    had sentenced Spivey originally and was familiar with the details
    of Spiveys case from the initial sentencing hearing.

    Spiveys

    presentence report outlined his offense conduct and his criminal


    history.
    about

    the

    Finally, Spivey took the opportunity to argue at length


    strength

    of

    the

    evidence

    against

    him

    during

    the

    resentencing hearing, providing additional information about the


    nature and circumstances of his offense prior to the district
    courts imposition of sentence.
    The sentencing court need not explicitly discuss every
    3553(a) factor on the record . . . particularly . . . when the
    district court imposes a sentence within the applicable Guidelines
    range.

    Johnson,

    445

    F.3d

    at

    345

    - 4 -

    (internal

    quotations

    and

    citations omitted).

    Rather, we can evaluate whether the court

    considered the 3553(a) factors and whether it did so properly


    based on the context surrounding a district courts explanation.
    See Montes-Pineda, 445 F.3d at 381.

    We find that the district

    court here fully complied with the mandates of Booker and Hughes,
    and that Spiveys sentence was reasonable and not in violation of
    his Sixth Amendment rights.
    Accordingly, we affirm Spiveys sentence.

    Given that

    Spivey is represented by counsel, we deny his motion to file a


    supplemental pro se brief.

    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

    - 5 -

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