UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4619

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TODD LAMEL MYERS,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Florence. Terry L. Wooten, District Judge. 

(4:08-cr-00746-TLW-3)

Submitted: July 26, 2010 Decided: August 17, 2010

Before KING, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael Chesser, Aiken, South Carolina, for Appellant. Kevin F. 

McDonald, Acting United States Attorney, Columbia, South 

Carolina, A. Bradley Parham, Assistant United States Attorney, 

Florence, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Todd Lamel Myers appeals his within-guidelines 

sentence following a guilty plea to conspiracy to distribute 

cocaine base in violation of 21 U.S.C. § 846 (2006). We affirm. 

This court reviews within-guidelines sentences under 

a “deferential abuse-of discretion standard,” and only reverses

errors that are “significant.” United States v.

Mendoza-Mendoza, 597 F.3d 212, 219 (4th Cir. 2010) (citing 

Gall v. United States, 552 U.S. 38, 51-52 (2007)). This 

standard of review applies to alleged Rita*

District courts do not, however, apply the same 

presumption of reasonableness to the sentencing guidelines. 

Mendoza-Mendoza, 597 F.3d at 216-17 (citations omitted). 

Instead, they must make an “individualized assessment” for each 

defendant. Id. (Significantly less explanation is required for 

a within-guidelines sentence than for one outside the advisory 

range). Myers alleges that the district court committed a 

procedural Rita error by applying an “implicit” or “de facto” 

errors with the same 

force that it applies to “all other[]” perceived errors. Id. 

Moreover, this court applies a presumption of reasonableness to 

within-guidelines sentences. E.g., United States v. Go, 571 

F.3d 216, 218 (4th Cir. 2008).

 * See Rita v. United States, 551 U.S. 338, 351 (2007).
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presumption in favor of a guideline sentence. In support of his 

argument, he cites to the district court’s statement that the 

advisory guidelines “provide a reasonable basis” for imposing a 

sentence. 

This court addressed in Mendoza-Mendoza the 

appropriate touchstone for evaluating the sort of “Rita

presumption” that Myers asserts occurred here. 597 F.3d at 

216-20. In that case, we stated that “[i]f the sentencing court 

did what it was supposed to do – hearing out both sides and 

making an individualized assessment in light of § 3553(a) – then 

it should be protected from claims of having applied a Rita

presumption.” Id. at 218. Here, Myers has not argued that he 

was denied an opportunity to be heard or that the court failed 

to individually assess him at sentencing. Accord Edwards v. 

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

(failure to specifically raise an issue in an opening brief 

results in abandonment of that issue). 

Moreover, after independently reviewing the record, it 

is clear that the district court: (1) paid attention to Myers’ 

arguments; (2) was familiar with the cases counsel cited, 

including Rita; (3) considered itself to be the ultimate 

authority in deciding Myers’ sentence; (4) considered the § 

3553(a) factors to be of the utmost importance in deciding 

Myers’ sentence; and (5) considered the advisory guidelines to 
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be secondary factors. Further, when confronted with additional 

arguments why Myers should be sentenced to a below-guidelines 

sentence (i.e., his criminal history was relatively “minor,” and 

a long sentence would devastate his family), the district court 

responded directly to each claim and adequately addressed them. 

We conclude that the record, taken as a whole, 

indicates that the district court sentenced Myers to a withinguidelines sentence as a matter of judgment, not because it 

believed it was required to do so or because it believed the 

guidelines were presumptively correct. Myers has thus failed to 

show a procedural Rita error. Compare Mendoza-Mendoza, 597 F.3d 

at 219-20 (vacating sentence where district court stated that it 

“did not agree” with the guidelines, and that it was “obligated” 

to sentence defendant within them unless it could find a 

compelling reason to divert from them). 

Myers’ argument that his “crack” sentence is 

substantively unreasonable is likewise without merit. In his 

brief, Myers argues simply that “any sentence treating crack 

[cocaine] more punitively than powder [cocaine]” is inherently 

unreasonable and unfair. He states that any crack sentence 

“based on a ratio other than 1 to 1,” vis a vis powder cocaine 

is substantively unreasonable. However, Myers has not cited any 

case or authority that accepts his policy-driven arguments. 
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This court has repeatedly rejected claims, such as 

those made by Myers, that the sentencing disparity between 

powder cocaine and crack offenses violates either the Equal 

Protection Clause or a defendant’s due process rights. See,

e.g., United States v. Perkins, 108 F.3d 512, 518-19 & n.34 

(4th Cir. 1997); United States v. Burgos, 94 F.3d 849, 876-77 

(4th Cir. 1996) (en banc). To the extent that Myers seeks to 

have us reconsider these decisions, a panel of this court cannot 

overrule the decision of a prior panel. See United States v. 

Simms, 441 F.3d 313, 318 (4th Cir. 2006). Moreover, 

Kimbrough v. United States, the case upon which Myers primarily 

relies, did not overturn these precedents. See 552 U.S. 85, 107 

(2007) (sentencing courts are bound by the disparate statutory 

terms of imprisonment for powder cocaine and cocaine base,

notwithstanding district court’s discretion to depart from 

advisory Sentencing Guidelines ranges based on the disparity).

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