United States of America v. France, 164 F.3d 203 4th Cir. 1998 . At King’s resentencing, defense counsel did not…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5076
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BONNIE J. KING, a/k/a Miss Bonnie,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (5:02-cr-00017-FPS-AL)
Submitted: March 28, 2007 Decided: May 14, 2007
Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Robert H. McWilliams, Jr., Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bonnie J. King was arrested in 2001 and confessed to
involvement with 113 grams of cocaine base. Pursuant to a plea
agreement, King pled guilty to two counts - conspiracy to use a
communication facility to commit a drug felony, in violation of 21
U.S.C. § 846 (1999) and use of a communication facility to commit
a drug felony, in violation of 21 U.S.C. § 843(b) (1999). In
August of 2001, King was sentenced to forty-eight months per count,
to run consecutively, the maximum allowable under the statutes of
conviction.
Following sentencing, King successfully petitioned the
district court for a writ of habeas corpus. As a result of her
successful petition, King’s sentence was vacated. Prior to her
resentencing, King submitted a motion for a sentence variance.
King’s basis for the variance was that her elderly mother was in
dire need of a kidney transplant, and as her only living child,
King could be determined to be a suitable donor.
On October 2, 2006, King appeared for resentencing. The
purpose for this resentencing was, according to defense counsel, to
reimpose the original sentence and thereby open King’s ten-day
window for appeal. The district court reinstated the original
sentence, and King timely noted her appeal. On appeal, King
alleges two errors. First, that the district court abused its
discretion by not allowing King or her mother to testify at the

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resentencing. Second, that the court’s sentence was unreasonable
in light of King’s motion for a sentence variance. We are not
persuaded by either of King’s arguments and affirm for the reasons
that follow.
When a party fails to object in the court below to a
decision regarding the admission or exclusion of evidence, the
standard of review on appeal is not abuse of discretion but plain
error. United States v. France, 164 F.3d 203 (4th Cir. 1998). At
King’s resentencing, defense counsel did not call either King or
her mother to testify. Rather, the record makes clear that at the
resentencing King proceeded by way of proffer and the district
court never prevented her from calling witnesses. Accordingly, we
find no error, plain or otherwise, in the district court’s failure
to receive witness testimony at the resentencing hearing.
King’s second alleged error is that her sentence was
unreasonable in light of her variance motion. After United States
v. Booker, this court reviews a sentence to determine whether it is
reasonable. United States v. Moreland, 437 F.3d 424, 433 (4th
Cir.), cert. denied 126 S. Ct. 2054 (2006). A sentence that falls
within the properly calculated advisory guideline range is
presumptively reasonable. United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006).
A sentencing court may impose a variance sentence if the
court determines that a sentence within the guidelines range does

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not serve the factors in § 3553(a). Moreland, 437 F.3d at 432. To
impose a variance sentence, the sentencing court must determine if
an appropriate basis for departure exists based on the Guidelines
Manual or relevant case law. Id. According to the Guidelines
Manual, “family ties and responsibilities are not ordinarily
relevant in determining whether a departure may be warranted.”
USSG § 5H1.6 (2006).
King argues that the district court imposed an
unreasonable sentence by not taking into account her extraordinary
family circumstances. King’s extraordinary circumstances were that
her mother needs a kidney transplant, and as the only surviving
child, King may, at some point, be determined to be a suitable
donor.
Despite King’s argument to the contrary, the district
court considered in detail King’s family circumstances in relation
to the applicable law. The court determined that King’s
circumstances did not warrant a departure under § 5H1.6 of the
guidelines. The court also determined that there were no factors
under 18 U.S.C. § 3553(a) to support a sentence variance,
particularly in light of the tenuous basis for King’s variance
motion. As the court pointed out, King had not yet been determined
to be a qualified donor for her mother. Also, it was unknown
whether King could receive a furlough in order to effectuate any
transplant surgery. The court concluded by determining that the

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original sentence would reflect the seriousness of the offense,
promote respect for the law, provide just punishment, deter
criminal conduct, and protect the public from further crime.
Hence, King’s second contention also lacks merit.
Accordingly, we affirm the judgment of the district
court. 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

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