UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4437

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BILLY R. MCCULLERS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Newport News. Rebecca Beach Smith, 

District Judge. (4:07-cr-00049-RBS-JEB-1)

Submitted: August 30, 2010 Decided: September 17, 2010

Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, 

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Cullen D. Seltzer, SELTZERGREENE, PLC, Richmond, Virginia, for 

Appellant. Neil H. MacBride, United States Attorney, Richard D. 

Cooke, Assistant United States Attorney, Howard J. Zlotnick, 

Assistant United States Attorney, Newport News, Virginia, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Billy R. McCullers, Jr., appeals from his conviction 

and sentence imposed for multiple violations of drug trafficking 

and firearms statutes, and witness tampering. On appeal, 

McCullers challenges the Government’s use of its peremptory jury 

strikes on African-Americans, the reasonableness of the 

eighty-five year sentence imposed, the sentencing disparity for 

crack cocaine, and whether he should have received consecutive 

sentences for 18 U.S.C. § 924(c) (2006) violations. We conclude 

there is no error and affirm the judgment.

McCullers contests the district court’s decision to 

deny his challenge under Batson v. Kentucky, 476 U.S. 79 (1986). 

The Equal Protection Clause forbids the use of a peremptory 

challenge for a racially discriminatory purpose. Batson, 476 

U.S. at 86. This court gives “great deference” to the trial 

court’s finding “concerning whether a peremptory challenge was 

exercised for a racially discriminatory reason.” Jones v. 

Plaster, 57 F.3d 417, 421 (4th Cir. 1995). The finding is 

reviewed for clear error. Id. 

In Hernandez v. New York, 500 U.S. 352 (1991), the 

Supreme Court summarized the three-step process used to analyze 

a Batson claim: 

First, the defendant must make a prima facie showing 

that the prosecutor has exercised peremptory 

challenges on the basis of race. Second, if the 
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requisite showing has been made, the burden shifts to 

the prosecutor to articulate a race-neutral 

explanation for striking the jurors in question. 

Finally, the trial court must determine whether the 

defendant has carried his burden of proving purposeful 

discrimination.

Id. at 358-59 (internal citations omitted). The court added 

that, in undertaking a Batson analysis:

the decisive question will be whether counsel’s raceneutral explanation for a peremptory challenge should 

be believed. There will seldom be much evidence 

bearing on that issue, and the best evidence often 

will be the demeanor of the attorney who exercises the 

challenge. . . . [E]valuation of the prosecutor’s 

state of mind based on demeanor and credibility lies 

peculiarly within a trial judge’s province.

Id. at 365.

At the second step, “[u]nless a discriminatory intent 

is inherent in the prosecutor’s explanation, the reason offered 

will be deemed race-neutral.” Id. at 360. The proffered reason 

for striking a juror “need not be worthy of belief or related to 

the issues to be tried or to the prospective juror’s ability to 

provide acceptable jury service.” Jones, 57 F.3d at 420. All 

that is required is that the reason be race-neutral. See

Purkett v. Elem, 514 U.S. 765, 768 (1995). Both age and 

occupation are legitimate, race-neutral reasons to strike. 

United States v. Grimmond, 137 F.3d 823, 834 (4th Cir. 1998) 

(age); Smulls v. Roper, 535 F.3d 853, 867 (8th Cir. 2008)

(occupation). Here, because the prosecutor provided 

race-neutral explanations (age, occupation, and residence in a 
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high drug activity zip code) for striking the three jurors in 

question, the Government satisfied its burden at the second 

step.

At the third step, the trial court’s duty is to 

determine whether the Government’s race-neutral reason for a 

strike is “a pretext for discrimination.” United States v. 

Farrior, 535 F.3d 210, 221 (4th Cir. 2008). The defendant must 

“show both that [the Government’s stated reasons for a strike] 

were merely pretextual and that race was the real reason for the 

strike.” United States v. McMillon, 14 F.3d 948, 953 (4th Cir. 

1994). At this step, the “‘defendant may rely on all relevant

circumstances to raise an inference of purposeful 

discrimination.’” Golphin v. Branker, 519 F.3d 168, 179 (4th 

Cir. 2008) (quoting Miller-El v. Dretke, 545 U.S. 231, 240 

(2005)). The defendant need not “point to an identical juror of 

another race who was not peremptorily challenged.” Golphin, 519 

F.3d at 179. Rather, “direct comparisons between similarly 

situated venire-persons of different races” are probative. Id.

at 179-80 (internal quotation marks omitted).

In this case, McCullers — an African-American male —

objected to the striking of three of the eight African-Americans 

on the venire panel. The district court properly credited the 

Government’s reasons as legitimate and nondiscriminatory, and 

McCullers failed in his burden to prove intentional 
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discrimination. Therefore the district court did not clearly 

err in denying McCullers’ Batson challenge.

McCullers argues that his sentence was excessive under 

18 U.S.C. § 3553(a) (2006). McCullers received an 85-year 

sentence, with the statutory minimum sentence being 65 years. 

McCullers argues that even the 65-year sentence, consisting of 

all statutory minimum sentences, which includes ten years for 

count one, would in effect be a life sentence because he was 31 

years old at sentencing and had a remaining life expectancy of 

42 to 45 years. We review a sentence for reasonableness under 

an abuse of discretion standard. Gall v. United States, 552 

U.S. 38, 51 (2007). This review requires appellate 

consideration of both the procedural and substantive 

reasonableness of a sentence. Id. Procedural reasonableness is 

determined by reviewing whether the district court properly 

calculated the defendant’s advisory Guidelines range and then 

considered the 18 U.S.C. § 3553(a) factors, analyzed any 

arguments presented by the parties, and sufficiently explained 

the selected sentence. Id. at 49-51. “Regardless of whether 

the district court imposes an above, below, or within-Guidelines 

sentence, it must place on the record an ‘individualized 

assessment’ based on the particular facts of the case before 

it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 

2009). Substantive reasonableness of the sentence is determined 
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by “taking into account the ‘totality of the circumstances, 

including the extent of any variance from the Guidelines 

range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 

2007) (quoting Gall, 552 U.S. at 51).

What McCullers essentially seeks is a downward 

variance so that, with the additional consecutive sentences, the 

total sentence is not so onerous. However, under § 924(c), a 

defendant is first sentenced for the underlying drug trafficking 

offense, without consideration for the applicable consecutive 

sentences related to the firearm violations. A court may not 

effectively convert these sentences into concurrent sentences by 

shrinking the sentence that it would otherwise impose for the 

predicate offenses for the § 924(c) violation. See United 

States v. Chavez, 549 F.3d 119 (2d Cir. 2008).

Here, the district court correctly calculated the 

sentence and there is no procedural error. The court was aware 

of its discretion to vary downward and chose not to do so. 

McCullers’ main objection is that a sixty-five-year sentence 

would in effect be a life sentence, statistically speaking; and 

that, therefore, the eighty-five-year sentence imposed is 

greater than necessary under the requirements of § 3553(a). In 

determining that a 360-month sentence on several of the 

concurrent drug counts, in addition to the mandatory consecutive 

statutory sentences, was appropriate, the district court 
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considered the § 3553(a) factors, explicitly noting that the 

facts and circumstances of the conspiracy offense “weigh[] 

heavily against [McCullers] because of the length of the 

conspiracy, the amount of drugs that were involved, and all of 

the matters,” and adopted the facts in the PSR. The court also 

noted that McCullers was “hanging around and involving [him]self 

in a drug conspiracy with some pretty rough characters.” The 

court further noted the three separate firearm offenses 

involving three different years, establishing a continued use of 

guns and the seriousness of that conduct. The court credited 

that McCullers was only in criminal history category II. 

However, the court found that McCullers’ conduct had not 

previously promoted respect for the law and that the court 

considered the need for deterrence of continued criminal conduct 

and the need to protect the public from future crimes by 

McCullers. Finally, in imposing the sentence, the court found 

that the sentence on each count was sufficient but not greater 

than necessary to comply with the purposes of § 3553(a). 

Moreover, McCullers’ within-Guidelines sentence is presumptively 

reasonable on appeal, and McCullers has not rebutted that 

presumption. See United States v. Montes-Pineda, 445 F.3d 375, 

379 (4th Cir. 2006) (stating presumption may be rebutted by 

showing sentence is unreasonable when measured against the 
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§ 3553(a) factors). Thus, we conclude that the district court 

did not abuse its discretion in imposing the chosen sentence.

McCullers argues that sentencing based on a 

discrepancy between crack and powder cocaine violates the Equal 

Protection Clause. McCullers correctly contends that under 

Kimbrough v. United States, 552 U.S. 85 (2007), district courts 

do not have to adhere to the 100-to-1 sentencing ratio creating 

the crack/powder cocaine disparity. McCullers also notes the 

Sentencing Commission is advocating for eliminating or at least 

reducing the 100-to-1 ratio and that the Department of Justice 

has called for eliminating the sentencing disparity between 

crack cocaine and powder cocaine. In addition, McCullers points 

to a bill pending in Congress that would remove references from 

the United States Code to cocaine base, thus eliminating the 

sentencing disparity.

According to McCullers, any sentence that was based 

upon something greater than a one-to-one ratio for crack and 

powder cocaine would be unfair and unreasonable. McCullers 

fails to cite any controlling opinion or statute that required 

the district court to apply the one-to-one to ratio. 

In Spears v. United States, 129 S. Ct. 840 (2009), the 

Supreme Court acknowledged that Kimbrough stood for the 

proposition that sentencing courts have the “authority to vary 

from the crack cocaine Guidelines based on policy disagreement 
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with them, and not simply based on an individualized 

determination that they yield an excessive sentence in a 

particular case.” Spears, 129 S. Ct. at 843. In Spears, the 

Supreme Court approved of the sentencing court’s decision to 

apply a twenty-to-one ratio when imposing a sentence in a 

typical crack cocaine case. Id. at 844. However, it is one 

thing to say that a district court may vary from a Guideline on 

policy grounds; it is quite a leap, however, to hold that it 

must. See Spears, 129 S. Ct. at 844 (holding “we now clarify 

that district courts are entitled to reject and vary 

categorically from the crack-cocaine Guidelines based on a 

policy disagreement with those Guidelines”).

Here, the district court clearly understood it had the 

authority to vary below the Guidelines based on a consideration 

of something less than the current sentencing disparity between 

crack and powder cocaine. It properly calculated the Guidelines 

using the current base offense level for the quantity of crack 

cocaine for which McCullers was held responsible.

Finally, McCullers asserts error relative to his 

sentence because his three § 924(c) convictions were returned in 

the same proceeding and were therefore allegedly intertwined. 

He therefore claims that he cannot be subjected to the 25-year 

statutory minimum sentence for a “second or successive” 

conviction. Under § 924(c), a five-year sentence, consecutive 
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to the predicate felony, is imposed for the first such 

conviction and a twenty-five year sentence is imposed for each 

subsequent conviction. McCullers’ claim is foreclosed by 

Deal v. United States, 508 U.S. 129, 137 (1993). Such is the 

case even where the prior offenses giving rise to the 

enhancement are all tried during a single proceeding. Id. at 

137. In addition, the conduct for each of the three § 924(c) 

convictions took place in three separate years and each was tied 

to a separate drug trafficking count as a predicate felony. 

Therefore, McCullers’ claim fails.

Accordingly, we affirm the 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