United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2015 Decided December 1, 2015

No. 12-3108

UNITED STATES OF AMERICA,

APPELLEE

v.

NATHANIEL LAW,

APPELLANT

Consolidated with 13-3038, 13-3077

Appeals from the United States District Court

for the District of Columbia

(No. 1:03-cr-00311-4)

(No. 1:03-cr-00311-1)

(No. 1:03-cr-00311-2)

Sylvia Royce, appointed by the court, argued the cause for

appellants. With her on the briefs were Christine Pembroke and

Allen Orenberg, also appointed by the court. 

Katherine M. Kelly, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Vincent H. Cohen

Jr., Acting U.S. Attorney, and Elizabeth Trosman, John P.

Mannarino, and Kenneth F. Whitted, Assistant U.S. Attorneys.
2

Before: GARLAND, Chief Judge, and EDWARDS and

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: A jury convicted the appellants of

conspiring to traffic in narcotics and numerous related crimes. 

The scope of the conspiracy, and the appellants’ role in

distributing powder cocaine, crack cocaine, and heroin over the

course of seven years, is detailed in the opinion of a panel of this

court that considered the appellants’ first appeal of their

convictions and sentences. See United States v. Law, 528 F.3d

888 (D.C. Cir. 2008). In that opinion, the court affirmed the

convictions in most respects, but reversed on one count per

appellant and remanded for resentencing. Id. On remand, the

district court sentenced all three appellants anew, and each now

raises a number of objections to his resentencing. We affirm the

appellants’ sentences in all respects.

I 

The district court resentenced appellant William Farrell to

concurrent terms of 262 months on each of four counts and 240

months on the remaining count. The 262-month sentences were

substantially lower than the sentences the court originally

imposed on those counts in 2005.1

 Farrell brings four challenges

to his sentences, three of which allege procedural error and one

of which alleges substantive error. He did not raise any of these

objections in the district court.

1

 At their resentencings, both Farrell and co-defendant Carroll

Fletcher received lower sentences than they originally received

because the district court applied the comparatively less severe 2011

United States Sentencing Guidelines and the Fair Sentencing Act of

2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372.
3

When reviewing a sentence, this court “first ensure[s] that

the district court committed no significant procedural error, such

as failing to calculate (or improperly calculating) the [U.S.

Sentencing] Guidelines range . . . or failing to adequately

explain the chosen sentence.” Gall v. United States, 552 U.S.

38, 51 (2007). We then “consider the substantive

reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Id. Procedural challenges that a

defendant did not make in the district court are reviewed for

plain error only. United States v. Ransom, 756 F.3d 770, 773

(D.C. Cir. 2014). We review claims of substantive

unreasonableness under the abuse-of-discretion standard,

however, “regardless of whether an objection on those terms

was made” in the district court. Id. at 775.

Farrell’s first contention is that the district court erred by

failing to calculate the applicable Guidelines range. This

argument fails because it is factually incorrect. At resentencing,

the district court expressly incorporated all of the comments

about sentencing factors that it had made at the original

sentencing, Resentencing Hr’g Tr. 26 (J.A. 209), adopted the

Probation Office’s undisputed Presentence Investigation Report

(PSR), id. at 17 (J.A. 200), and stated that the undisputed

Guidelines range was 262 to 327 months, id. at 26-27 (J.A. 209-

10).2

 The sentence the court imposed was the bottom of that

2 See also Farrell PSR at 5 (J.A. 321) (explaining the calculation

of the 262-to-327-month Guidelines range); Resentencing Hr’g Tr. 16

(J.A. 199) (statement by defense counsel that he had no objection to

the PSR); Def.’s Sentencing Mem. 1-2 (J.A. 180-81) (stating that

“[t]here do not appear to counsel to be material factual errors or

omissions to the U.S. Sentencing Guidelines computation” in the PSR

and that “Defendant’s counsel does not take issue with the [G]uideline

calculation of level 38, criminal history category II, which produces

a range of 262-327 months”).
4

range.

Second, Farrell contends that the district court erred, as part

of its Guidelines calculation (which he simultaneously claims

the district court never made), by increasing his Guidelines

offense level by four on the ground that he was an “organizer or

leader” of a drug trafficking organization. See United States

Sentencing Guidelines Manual (U.S.S.G.) § 3B1.1(a); see also

Law, 528 F.3d at 895 (observing that the district court had

applied the four-level enhancement at the original sentencing). 

The court erred, Farrell maintains, because it never made the

findings required to characterize him as an “organizer or leader.”

But the reason the district court did not make its own

findings is that it had put the question to the jury in the form of

a special verdict, and the jury found that Farrell was an

organizer or leader. The court did not err in relying on the jury’s

finding because, although a court is permitted to make a

sentencing determination based upon a mere “preponderance of

the evidence,” see United States v. Fahnbulleh, 752 F.3d 470,

481 (D.C. Cir. 2014), the jury -- as the court instructed --

resolved the question beyond a reasonable doubt. See Trial Tr.

30 (Jan. 19, 2005, PM Session). Farrell nonetheless complains

that the jury failed to consider the specific factors that a

sentencing court must examine when determining whether a

defendant was an organizer or leader. But that is simply

incorrect. In fact, the court instructed the jury in haec verba

with respect to the factors set out in the Guidelines and this

court’s precedent. Compare Trial Tr. 30 (Jan. 19, 2005, PM

Session), with U.S.S.G. § 3B1.1 cmt. n.4, and United States v.

Quigley, 373 F.3d 133, 138 (D.C. Cir. 2004).

Third, Farrell contends that the court failed to consider

certain factors that, according to the Guidelines, may be relevant

in determining whether a departure is warranted. Appellants Br.
5

20. Specifically, Farrell claims that the court failed to consider

his “age and somewhat problematic health.” Id. (referencing

U.S.S.G. §§ 5H1.1 and 5H1.3). Again, this failure-to-consider

argument is factually incorrect: the district court expressly

considered both Farrell’s age and his health. See Resentencing

Hr’g Tr. 27 (J.A. 210). But in light of its consideration of other

relevant sentencing factors, the court simply disagreed with

Farrell’s view that his age and health justified a departure. Id.

In so doing, the court did not err. See Rita v. United States, 551

U.S. 338, 356 (2007) (stating that the sentencing judge need

only “set forth enough [reasons] to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority”);

see also id. at 345, 356 (finding no abuse of discretion where the

district court acknowledged the defendant’s ailments and then

announced that a bottom-of-the-Guidelines sentence was

“appropriate” and that it would not depart downward).

Finally, Farrell argues that his 262-month sentences on four

counts -- the bottom of the Guidelines range -- were

substantively unreasonable and that the court should instead

have sentenced him to the statutory mandatory minimum of 240

months’ incarceration. We review the reasonableness of a

sentence under a “deferential abuse-of-discretion standard,”

Gall, 552 U.S. at 40, and a “sentence within a properly

calculated Guidelines range is entitled to a rebuttable

presumption of reasonableness,” United States v. Dorcely, 454

F.3d 366, 376 (D.C. Cir. 2006); see Rita, 551 U.S. at 347

(authorizing appellate courts to apply such a presumption). 

Farrell’s argument does nothing to rebut the presumption of

reasonableness. Indeed, we note that on Farrell’s first appeal,

this court held that his original, higher sentence of 324 months

was within the zone of reasonableness. See Law, 528 F.3d at

902-03. 
6

II

Like his co-defendants, Nathaniel Law was convicted on

Count 1 of the indictment, which charged him with conspiracy

to distribute 5 kilograms or more of cocaine, 50 grams or more

of cocaine base, and 100 grams or more of heroin. See 21

U.S.C. §§ 841, 846. At resentencing, both the prosecutor and

defense counsel agreed that the court was required by statute to

sentence Law to life imprisonment on that count because of the

quantity of drugs involved and the fact that he had “two or more

prior convictions for a felony drug offense,” id. § 841(b)(1)(A). 

See Resentencing Hr’g Tr. 20-21, 25-27 (J.A. 152-53, 157-59). 

Accordingly, the court resentenced Law to life on Count 1. It

resentenced Law to concurrent terms of 212 months on the

remaining (subsidiary) counts. The sentence on each count was

the same as the sentence the court originally imposed.

Like Farrell, Law maintains for the first time on appeal that

the district court committed procedural error by failing to

calculate the applicable Guidelines range at resentencing. This

argument meets the same fate as Farrell’s because it is not

factually correct. At the resentencing, the district court

incorporated by express reference the Guidelines calculations it

had made at Law’s first sentencing -- as well as the reasons the

court had given for granting Law a downward departure from

the Guidelines range on the subsidiary counts. See Resentencing

Hr’g Tr. 28-29 (J.A. 160-61). Although nothing more was

required, there was more. The court’s Guidelines range was the

same as that recommended in the PSR for the resentencing,

which defense counsel stated he did not dispute, id. at 22 (J.A.

154), and which the district court adopted, id. at 24-25 (J.A.

156-57). Moreover, the sentence to which the defendant

principally objects, the life sentence on Count 1, was not a

Guidelines sentence at all. Rather, it was mandated by 21

U.S.C. § 841(b)(1)(A), which -- as Law’s trial counsel
7

acknowledged -- “trumps the Guidelines,” Resentencing Hr’g

Tr. 20 (J.A. 152).

Law also contends for the first time that the life sentence the

court imposed on Count 1 violates the Eighth Amendment

because it constitutes cruel and unusual punishment. This

contention is foreclosed by precedent. The Supreme Court

rejected it in Harmelin v. Michigan, 501 U.S. 957 (1991), and

this court, following Harmelin, likewise rejected it in United

States v. Walls, 70 F.3d 1323, 1328 (D.C. Cir. 1995). In its

recent opinion in Miller v. Alabama, the Supreme Court left

Harmelin undisturbed. See 132 S. Ct. 2455, 2470 (2012)

(“[L]ife without parole is permissible for nonhomicide offenses

-- except . . . for children. . . . Our ruling thus neither overrules

nor undermines nor conflicts with Harmelin.”).

III

Appellant Carroll Fletcher was resentenced to life

imprisonment on Count 1 because, like Law, he had “two or

more prior convictions for a felony drug offense”: one in 1987

and one in 1977. See 21 U.S.C. § 841(b)(1)(A). The court

imposed concurrent terms of 168 months on the remaining

counts. The sentence on Count 1 was the same as that originally

imposed; the remaining sentences were substantially lower than

those the court originally imposed. See supra note 1. Fletcher

raises five objections to his sentences, several of which he did

not raise below. 

First, like his co-defendants, Fletcher contends that the

district court failed to calculate the applicable Guidelines range. 

Fletcher’s argument fails because it is, again, factually incorrect. 

See Resentencing Hr’g I Tr. 11-12 (June 5, 2013) (J.A. 232-33)

(statement by the court that Fletcher’s Guidelines range was

“168 to 210 months”); Resentencing Hr’g II Tr. 6 (July 26,
8

2013) (J.A. 248) (noting that “the [G]uideline range for a level

34 offense with a criminal history category of [II]” was 168 to

210 months); see also Fletcher PSR at 5 (calculating the same

Guidelines range); Resentencing Hr’g I Tr. 10 (J.A. 230)

(adopting the undisputed portions of the PSR).

Second, like Law, Fletcher argues that a life sentence for his

conviction on Count 1 violates the Eighth Amendment. 

Fletcher’s argument is foreclosed by the same precedents that

foreclose Law’s. See supra Part II.

Third, Fletcher argues that his 1987 conviction, which

contributed to the enhancement of his sentence on Count 1, was

entered pursuant to an Alford plea,3 and that a conviction based

on such a plea is insufficient to establish a prior conviction

under 21 U.S.C. § 841(b). We have no need to consider whether

Fletcher’s argument about Alford pleas is legally sound because

it is not factually sound. The government has produced the

Judgment and Commitment Order for Fletcher’s 1987

conviction, which shows that the 1987 conviction was not the

result of a plea at all. Supp. App’x 37-38; see Law, 528 F.3d at

911 (explaining that the Government could satisfy its burden of

proving a conviction by producing the Judgment and

Commitment Order).

Fourth, Fletcher contends that his 1977 conviction, which

also contributed to the enhancement of his sentence on Count 1,

was set aside under the Federal Youth Corrections Act (FYCA),

18 U.S.C. § 5021 (1976), and hence should not have been

3

 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding

that “[a]n individual accused of crime may voluntarily, knowingly,

and understandingly consent to the imposition of a prison sentence

even if he is unwilling or unable to admit his participation in the acts

constituting the crime”).
9

considered in his sentencing on that count. Fletcher offers no

evidence that his 1977 conviction was set aside. Moreover, the

prior panel held that, “[e]ven assuming [Fletcher’s] 1977

conviction was set aside under the FYCA, . . . the conviction

still counts for purposes of sentencing under [21 U.S.C.]

§ 841(b),” Law, 528 F.3d at 909, and “the district court still must

take it into account in determining his sentence under § 841(b),” 

id. at 910. That decision is the law of the case, see LaShawn v.

Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc), and

obviates the need for further discussion of this contention.

Finally, at oral argument Fletcher asserted -- for the first

time -- that there was a defect in the Judgment and Commitment

Order for his 1977 conviction that rendered improper any

reliance on that conviction for sentencing enhancement. The

alleged defect: the version of the order on the court’s Electronic

Case File system lacked a “second page” with the requisite

signature of the trial judge. See Supp. App’x 39. Although this

argument comes far too late, it contains a more fatal flaw: the

government has provided both this court and opposing counsel

with the missing “second page” -- and it does in fact contain the

signature of the district judge.4

 Accordingly, we have no

grounds for questioning Fletcher’s sentence.

 IV

For the foregoing reasons, we reject all of the appellants’

sentencing challenges and affirm the judgments of the district

court.

So ordered. 

4

 The entire document is actually one page, but because it was

originally printed on legal-size paper, it required two pages when

copied.