United States of America v. Carlos Lashan Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4984
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS LASHAN DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00089-JAB-1)
Submitted: June 9, 2009 Decided: August 26, 2009
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeanette Doran Brooks, Raleigh, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, David P. Folmar,
Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

PER CURIAM:
Carlos Lashan Davis appeals his sentence imposed after
he pleaded guilty to distribution of cocaine base. On appeal,
Davis argues for the first time that the district court should
have considered the disparity in the sentencing ratio between
crack and powder cocaine and he should have received a lower
sentence based on this disparity. Davis was sentenced prior to
the effective date of Amendment 708. Finding no error, we
affirm.*
Because Davis did not argue below that he should be
sentenced below the advisory Guidelines range based upon the
crack/powder cocaine disparity in the Guidelines, review is for
plain error. See United States v. Branch, 537 F.3d 328, 343
(4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009). Assuming
the district court’s failure to consider the crack/powder
disparity constitutes error that was plain, it must still be
established that the error affected the defendant’s substantial
rights. See id. This court previously has “concluded that the
error of sentencing a defendant under a mandatory guidelines
regime is neither presumptively prejudicial nor structural,”
thereby requiring a showing of “actual prejudice.” United
* This case was placed in abeyance for United States v.
Antonio, 311 F. App’x 679, 2009 WL 430426 (4th Cir. 2009) (No.
07-4791) (unpublished).
2

-- 2 of 3 --

3
States v. White, 405 F.3d 208, 223 (4th Cir. 2005). Thus, the
burden is on the defendant to establish that the error “affected
the district court’s selection of the sentence imposed.” Id.
Here, the record is entirely silent on this issue.
Because the record does not reveal a nonspeculative basis for
concluding that the district court would have imposed a shorter
sentence had it known it possessed the discretion to do so, we
conclude that Davis cannot demonstrate that the district court’s
failure to consider the crack/powder disparity affected his
substantial rights. We therefore affirm the sentence. We note
that this decision does not preclude Davis from seeking
modification of his sentence pursuant to 18 U.S.C. § 3582(c) in
light of Amendment 706 to the U.S. Sentencing Guidelines. 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

-- 3 of 3 --