UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5146

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WESLEY DEVON FOOTE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:06-cr-00177-NCT-1)

Submitted: August 12, 2010 Decided: September 14, 2010

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram, 

First Assistant Federal Public Defender, Greensboro, North 

Carolina, for Appellant. Anna Mills Wagoner, United States 

Attorney, Randall S. Galyon, Assistant United States Attorney, 

Julie Ann Daniel, Third-Year Law Student, Wake Forest 

University, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Wesley Devon Foote pled guilty to three counts of 

distributing cocaine base (crack) and was sentenced in 2006 to a 

term of 262 months imprisonment. We affirmed his sentence; 

however, the Supreme Court vacated the judgment and remanded his 

case for reconsideration in light of Kimbrough v. United States, 

552 U.S. 85 (2007) (holding that sentencing court may consider 

crack/powder cocaine sentencing ratio as basis for variance). 

See United States v. Foote, 249 F. App’x 967 (4th Cir. 2007) 

(No. 07-4129), vacated, 552 U.S. 1163 (2008). On remand from 

the Supreme Court, we vacated Foote’s sentence and remanded for 

resentencing “[t]o give the district court the opportunity to 

reconsider the sentence in light of Kimbrough[.]” United 

States v. Foote, 276 F. App’x 307 (4th Cir. 2008) (No. 07-4139). 

The district court again declined to vary below the guideline 

range and reimposed the same term of 262 months imprisonment.

On appeal, Foote contends that the district court 

erred in one of two ways; either by not recognizing its 

“discretion to determine what the appropriate ratio should be 

between crack and powder cocaine,” or by refusing to exercise 

its discretion. He also suggests that the district court did 

not adequately explain its reasons for not granting him a 

downward variance. We affirm.
3

We review a sentence for reasonableness under an abuse 

of discretion standard. Gall v. United States, 552 U.S. 38, 51 

(2007). Generally, this requires us to assess whether the 

district court properly calculated the guidelines range, 

considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any 

arguments presented by the parties, and sufficiently explained 

the selected sentence. Id. at 49-50; see United States v. Lynn, 

592 F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized 

explanation must accompany every sentence.”); United States v. 

Carter, 564 F.3d 325, 330 (4th Cir. 2009). We must also review 

the substantive reasonableness of the sentence, examining “the 

totality of the circumstances to see whether the sentencing 

court abused its discretion in concluding that the sentence it

chose satisfied the standards set forth in § 3553(a).” United 

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

However, we remanded this case after Kimbrough was 

decided solely to afford the district court an opportunity to 

decide whether it wished to vary in light of Kimbrough. The 

district court’s comments during the resentencing leave no doubt 

that it understood its discretion to vary below the guideline 

range based on the crack-to-powder cocaine ratio. The court 

decided not to vary and explained that it wished to leave to 

Congress the decision as to what the proper sentencing ratio 

should be. We are satisfied that the district court exercised 
4

its discretion, complied with its mandate on remand, and 

adequately explained its decision.

We therefore affirm the sentence imposed by the 

district court. 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