                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5067


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CARLOS WOODS,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:07-cr-00127-WDQ-1)


Submitted:    November 24, 2008             Decided:   January 5, 2009


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT,
P.C., Baltimore, Maryland, for Appellant.     Rod J. Rosenstein,
United States Attorney, John W. Sippel, Jr., Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Carlos   Woods    appeals       the    district       court’s    judgment

entered   pursuant       to   his   conviction        after     a    jury    trial     for

possession with the intent to distribute cocaine and possession

with the intent to distribute marijuana, both in violation of 21

U.S.C. § 841(a)(1) (2000).            Woods was sentenced to 262 months’

imprisonment on these convictions.                  For the reasons that follow,

we affirm.

              The   evidence   adduced        at    trial   revealed        that   during

their surveillance of two Baltimore, Maryland avenues known for

drug dealing, detectives with the Baltimore Police Department

observed and videotaped Woods engaging in multiple hand-to-hand

drug transactions with other persons.                  During this surveillance,

detectives observed Woods enter and exit from an alleyway and

observed and videotaped Woods entering an alleyway and emerging

from under the rear porch of a nearby residence.                              Woods was

placed under arrest, and detectives recovered vials and plastic

bags,   ultimately     determined      to     contain       2.31     grams    of   powder

cocaine and 8.45 grams of marijuana, from underneath the porch.

After   his    arrest,    Woods     waived     his     rights       under    Miranda   v.

Arizona, 384 U.S. 436 (1966), and admitted that he had been

selling cocaine and marijuana and that the drug stash under the

back porch of the residence belonged to him.



                                          2
               First,      Woods   contends          that        he     was       subject   to

vindictive prosecution, in violation of the Fifth Amendment.                                As

grounds for this claim, Woods relies on statements made by the

Government’s attorney at Woods’ detention hearing that Woods was

being prosecuted in federal court, despite, in the words of the

Government’s attorney, “the relatively small quantity of cocaine

and marijuana recovered,” pursuant to the Baltimore, Maryland

Exile Initiative as a “violent repeat offender.”                                  Pursuant to

this       Initiative,     local   police         refer    for    federal          prosecution

individuals who have been unsuccessfully prosecuted for their

participation in crimes of violence.                      The Government’s attorney

noted at the hearing that Woods, a career offender, had been

unsuccessfully prosecuted for past violent crimes in state court

and    was     therefore    a   target   of       the     Exile       Initiative.        Woods

asserts that because he exercised his right to defend himself

and was ultimately not convicted of murder and attempted murder

in     state    court,     he    was   vindictively          targeted             for   federal

prosecution.

               To establish prosecutorial vindictiveness, a defendant

must show that the prosecutor acted with genuine animus toward

the defendant, and the defendant would not have been prosecuted

but for that animus.            United States v. Wilson, 262 F.3d 305, 314

(4th Cir. 2001).           If a defendant cannot produce direct evidence

of     a     vindictive     motive,      he        can     establish          a     rebuttable

                                              3
presumption     of     vindictiveness    by    showing         that   a   “reasonable

likelihood of vindictiveness exists.”                United States v. Goodwin,

457 U.S. 368, 373 (1982).               If he succeeds, the burden then

shifts    to     the    Government      to     present         objective       evidence

justifying its conduct.          Id. at 374.             The evidence is viewed,

however, in the context of the “presumption of regularity” that

attends decisions to prosecute.              United States v. Armstrong, 517

U.S. 456, 464 (1996) (citation omitted).                   Thus, “in the ordinary

case, so long as the prosecutor has probable cause to believe

that the accused committed an offense defined by statute, the

decision whether or not to prosecute, and what charge to file

. . .    generally      rests    entirely      in    his       discretion.”         Id.

(internal quotations omitted).

              We note at the outset that most successful vindictive

prosecution claims involve retaliatory prosecutions by the same

sovereign that earlier brought the defendant to trial.                             See,

e.g., Goodwin, 457 U.S. at 381.                 Here, however, the alleged

vindictive     prosecution      was   brought       by    a    different       sovereign

altogether.      See United States v. Robinson, 644 F.2d 1270, 1273

(9th Cir. 1981) (expressing “doubt as to whether a prosecution

could be condemned as ‘vindictive’ when the defendant’s claim is

that    one   sovereign    is   punishing      him       for   rights     he   asserted

against a different sovereign.”).                   Additionally, there is no



                                         4
claim that Woods was intimidated from exercising any right in

any proceedings.

              Woods attempts to overcome this difficulty by pointing

to   the   Government’s           attorney’s       statements       at    the    detention

hearing that Woods was being prosecuted in federal court, at

least in part, on account of his prior unsuccessful prosecutions

in state court for murder and attempted murder.                          Even if we were

to assume there was some evidence of animus on the part of

Maryland      law    enforcement         in   referring        Woods     for    prosecution

pursuant      to    the    Exile    Initiative,         there     is     no    evidence    to

suggest    that      the    Government        official      who    actually       made    the

decision to prosecute Woods was motivated by any impermissible

consideration.         And we will not “impute the unlawful biases of

the investigating agents to the persons ultimately responsible

for the prosecution.”              United States v. Hastings, 126 F.3d 310,

314 (4th Cir. 1997).

              Finally,      objective         evidence      in    the    record      clearly

supports the Government’s decision to prosecute Woods in federal

court.        Given the facts adduced at trial, and especially in

light    of    Woods’       own    admission,       the     Government         clearly    had

probable      cause    to    believe      that      Woods      committed       the   charged

offenses.          Armstrong,      517    U.S.     at   464.      Accordingly,        Woods’

vindictive prosecution claim fails.



                                               5
              Next,    Woods    contends    that        his     262-month    prison

sentence violates his Eighth Amendment right to be free from

cruel       and   unusual      punishment   because            the   sentence      is

disproportionate to the crime committed.                  This court has held

that “proportionality review is not available for any sentence

less than life imprisonment without the possibility of parole.”

United States v. Ming Hong, 242 F.3d 528, 532 & n.3 (4th Cir.

2001).       Because Woods received a sentence of less than life

imprisonment,      the   proportionality     of    his        sentence   cannot    be

reviewed on appeal. *

              Finally,      Woods    contends     that         his   sentence      is

unreasonable.         We review Woods’ sentence under a deferential

abuse of discretion standard.           See Gall v. United States, 128 S.

Ct. 586, 590 (2007).           To determine whether a sentencing court

abused its discretion, we undertake a two-part analysis.                     United

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                     First, we

examine the sentence for “significant procedural errors,” and

second,      we   evaluate     the   substance     of    the     sentence.        Id.


        *
       Recognizing that Ming Hong is controlling, Woods contends
that the decision conflicts with the Supreme Court’s Eighth
Amendment jurisprudence.      However, even if proportionality
review   was   available   to   Woods,  his   sentence  is   not
disproportionate in light of his recidivism.       See Ewing v.
California, 538 U.S. 11, 29-30 (2003) (plurality opinion)
(sentence of twenty-five years to life for recidivist did not
violate the Eighth Amendment).



                                        6
Significant     procedural      errors      include         improper    calculation      of

the    Guidelines     range,    treating            the    Guidelines    as    mandatory,

failing to consider the 18 U.S.C.A. § 3553(a) (West 2006 & Supp.

2008)    factors,     or    failing       to       adequately    explain       the     given

sentence.       Id. at 473.         Substantive reasonableness entails a

review of the totality of the circumstances, and we may presume

that     a   sentence      within    the           advisory    Guidelines       range    is

reasonable.      Id.; see Rita v. United States, 127 S. Ct. 2456,

2459 (2007).

             Here, the district court followed the necessary steps

in     sentencing     Woods.        The        court       properly     calculated      the

Guidelines range and heard from Woods and his counsel regarding

that    range   and   the   § 3553(a)          factors.        Further,       the    context

surrounding the district court’s sentence makes clear that it

considered the applicable § 3553(a) factors and concluded that

the     Guidelines      range    provided             an    appropriate        basis    for

determination of sentence.            See United States v. Montes-Pineda,

445 F.3d 375, 380 (4th Cir. 2006) (holding that a court need not

“robotically tick through” every subsection of § 3553(a)), cert.

denied, 127 S. Ct. 3044 (2007).                     In addition, we find no abuse

of discretion in the court’s decision to sentence Woods at the

low end of the Guidelines range for career offenders, especially

given Woods’ lengthy criminal history.



                                               7
           Accordingly, we affirm the district court's judgment.

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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