                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4280


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL LAMONT BOOMER,

                Defendant - Appellant.



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)


Submitted:   October 31, 2011              Decided:   November 10, 2011


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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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 minimum

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sentence 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     the

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multiple       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, 461 F.3d 452,

460-61 (4th Cir. 2006).

               Finally,      Boomer       claims    that          the       district       court’s

reliance on his possession of a firearm and bullet-resistant

vest was error and makes his sentence substantively unreasonable

because     this       conduct      was     punished         in       count       three,        under

§ 924(c), and should not be used to increase his sentence above

the   mandatory        minimum      for     count   one.              Boomer       is    incorrect

regarding        the     bulletproof        vest;       he        did       not       receive      an

enhancement based on the vest.                   The possession of a vest may be

deemed    an     aggravating       fact,     demonstrating              a    deeper       level    of

distribution           activity     requiring           serious             safety       measures.

Although the possession of a firearm was the subject of the

§ 924(c) count, the court’s reasoning appears to indicate that

the   possession        it   referred       to    was    a    part          of    a     pattern   of

defiance of the law and immersion in drug trafficking.



                                              5
             Consideration of the substantive reasonableness of a

sentence requires an assessment of the totality of circumstances

underlying the sentence, including the extent of any variance

from the Guidelines range.              United States v. Abu Ali, 528 F.3d

210, 261 (4th Cir. 2008).          Viewing the totality of the evidence,

we conclude that the 125-month sentence, five months above the

mandatory minimum and including a downward variance, was not an

abuse of discretion and therefore the sentence is reasonable.

             For the first time in his reply brief, Boomer argues

that   the    Fair    Sentencing   Act     should   have    applied    to    him    at

resentencing.        In the district court he conceded that the Fair

Sentencing Act did not apply.                 He also concedes in his reply

brief that his opening brief did not raise the issue.                      The court

will not consider issues raised for the first time in a reply

brief.    See United States v. Brooks, 524 F.3d 549, 556 n.11 (4th

Cir. 2008); Yousefi v. United States INS, 260 F.3d 318, 326 (4th

Cir.   2001)    (“Because     [the]      opening    brief   fails     to    raise    a

challenge      to    [a   basis   for    the    agency’s    decision],       he    has

abandoned it.         The fact that [he] pursues this issue in his

reply brief does not redeem his failure to do so in the opening

brief.”      (internal     citations      omitted));    Edwards     v.      City    of

Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).                   We therefore

decline to consider the issue.



                                          6
              Accordingly, we affirm the criminal judgment.          Because

there is no error in the resentencing and Boomer did not raise

any issues specific to the order reducing his sentence, we also

affirm the district court’s order granting a sentence reduction

under § 3582(c).        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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