                             UNPUBLISHED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.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 11-8737)


Submitted:   February 28, 2013              Decided:    March 14, 2013


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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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    Lamont        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.   2012)      and    18     U.S.C.    § 3582(c)(2)            (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    the    statutory       mandatory          minimum

sentences      applicable      in     his    case       violate    the     separation      of

powers      doctrine.          He     also    argues       that      his    sentence       is

substantively unreasonable.                 We affirmed the judgment in 2011,

but   the    Supreme    Court       granted       Boomer’s    petition      for    writ    of

certiorari, vacated the judgment, and remanded for consideration

in light of Dorsey v. United States, 132 S. Ct. 2321, 2335

(2012).      We have reviewed the relevant case law on remand and

affirm the judgment.

              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



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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. 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.                             Id. 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



                                              3
prosecutor’s discretion to seek enhanced minimum sentence does

not violate separation of powers doctrine).

             Boomer        argues   that      his    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

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.


     *
       Boomer’s brief states that the 125-month sentence is
unreasonable.    However, the 125 months was imposed after
consideration of Amendments 706 and 711 to the Sentencing
Guidelines and Boomer’s 18 U.S.C. § 3582(c)(2) motion.        At
resentencing, which occurred prior to adjudication of the
§ 3582(c)(2) motion, the sentence was 144 months on count one, a
downward variance from the 151-188 months original Guidelines
range. The total sentence on all counts was 204 months.



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            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

multiple        convictions        demonstrated          a     regular       pattern         of

violations and indifference toward the law.

            Next,         Boomer     contends         that         his      sentence         is

unreasonable because the district 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

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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 part of a pattern of defiance

of the law and immersion in drug trafficking.

          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 Sentencing 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 204-month total sentence, which

included a downward variance, was not an abuse of discretion and

therefore the sentence is reasonable.

          For the first time in his reply brief, Boomer argued

that the Fair Sentencing Act (FSA) should have applied to him at

resentencing.    Boomer    conceded   in    his   reply   brief   that   his

opening brief did not raise the issue.            Although generally we

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

brief, Yousefi v. I.N.S., 260 F.3d 318, 326 (4th Cir. 2001), we

                                  6
consider      Boomer’s     argument     in       light   of    the   Supreme       Court’s

remand and supplemental briefing by the parties.                           In ordering

remand, the Supreme Court did not determine the merits of the

FSA claim.

              Boomer may have been eligible to be sentenced under

the    FSA    because,     although     he       committed     his   offenses      before

August 3, 2010, the effective date of the FSA, the district

court conducted his second resentencing after that date.                               The

FSA is not retroactive for offenders who were sentenced prior to

enactment of the statute.              United States v. Bullard, 645 F.3d

237,    248   (4th   Cir.),     cert.       denied,      132   S.    Ct.   356     (2011).

However, the Supreme Court held that the FSA is retroactively

applicable to a defendant who committed his offenses prior to

August 3, 2010, but was sentenced after that date.                          Dorsey, 132

S. Ct. at 2335.            Although Boomer was originally sentenced six

years    before      the     FSA’s    effective          date,      his    most    recent

resentencing constituted a full sentencing hearing.                         Dorsey does

not make a distinction between original and resentencings after

the FSA’s effective date.

              The Government and Defendant agree that in light of

Dorsey, the new statutory minimum sentences of the FSA should

have applied at resentencing after the effective date of the

Act.    Even if we assume the FSA applies, we nevertheless do not

find    reversible    error     in    the    sentencing        proceedings        appealed

                                             7
here.       When considering whether preserved procedural sentencing

errors require resentencing, the court applies a harmless error

standard.        See United States v. Savillon-Matute, 636 F.3d 119,

123 (4th Cir.), cert. denied, 132 S. Ct. 454 (2011); United

States      v.     Boulware,       604   F.3d      832,   838     (4th    Cir.   2010).

Accordingly, we may affirm a sentence despite such an error if

the   Government         demonstrates      that     the   error    “did    not   have    a

substantial and injurious effect or influence on the result and

we    can    say    with    fair     assurance      that”   the     district     court’s

judgment was not affected by the error.                     Boulware, 604 F.3d at

838 (internal quotation marks and alterations omitted).

              Any       error   in   failing       to   apply     the    new   statutory

minimum under the FSA was harmless error.                         Here, the district

court    considered        Boomer’s      arguments,       recognized      that   it    had

discretion         to   vary    below    the   Guidelines       range    and   chose    to

impose a sentence above the pre-FSA ten-year statutory minimum

sentence.        While the failure to apply the FSA five-year minimum

was error, we conclude that the Government has established that

the error was harmless and certainly did not result in plain

error.       Id.; see also Puckett v. United States, 556 U.S. 129,

135 (2009) (plain error requires that the legal error “must be

clear or obvious, rather than subject to reasonable dispute”).

              Accordingly, we affirm the criminal judgment.                      Because

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

                                               8
any issues specific to the order reducing his sentence, we also

affirm the district court’s order granting a sentence reduction

under 18 U.S.C. § 3582(c)(2).       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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