UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4124

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY WAYNE THOMPSON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:08-cr-00496-WO-1)

Submitted: March 21, 2011 Decided: April 29, 2011

Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN, 

Winston-Salem, North Carolina, for Appellant. John W. Stone, 

Jr., Acting United States Attorney, Terry M. Meinecke, Assistant 

United States Attorney, Greensboro, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Timothy Wayne Thompson appeals his 120-month sentence 

imposed after a guilty plea to one count of distribution of 

cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)

(2006). We affirm.

Thompson, who twice sold cocaine base to an undercover 

police officer, also sold a hand grenade simulator and a ground 

burst simulator to the same officer. Thompson’s Presentence 

Investigation Report (“PSR”) recommended a two-level enhancement 

to his offense level for possession of a dangerous weapon. The 

district court overruled Thompson’s objection to the 

enhancement. Thompson challenges that enhancement on appeal, 

claims that the district court imposed a procedurally 

unreasonable sentence, and argues that a remand is necessary in 

light of the Fair Sentencing Act of 2010.

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). 

After determining whether the district court properly calculated 

the defendant’s advisory guideline range, this court must decide 

whether the district court considered the 18 U.S.C. § 3553(a) 

(2006) factors, analyzed the arguments presented by the parties, 
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and sufficiently explained the selected sentence. Lynn, 592 

F.3d at 575-76; see United States v. Carter, 564 F.3d 325, 330 

(4th Cir. 2009). Properly preserved claims of procedural error 

are subject to harmless error review. Lynn, 592 F.3d at 576. 

If the sentence is free of significant procedural error, the 

appellate court reviews the substantive reasonableness of the 

sentence. Id. at 575; United States v. Pauley, 511 F.3d 468, 

473 (4th Cir. 2007).

I. Sentence Enhancement

Under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) 

(2009), a district court must increase a defendant’s offense 

level two levels if the defendant possessed a dangerous weapon 

during a drug offense. USSG § 2D1.1(b)(1). The enhancement is 

proper when “the weapon was possessed in connection with drug 

activity that was part of the same course of conduct or common 

scheme as the offense of conviction.” United States v. Manigan, 

592 F.3d 621, 628-29 (4th Cir. 2010) (internal quotation marks 

omitted). Whether the district court properly applied the 

enhancement under USSG § 2D1.1(b)(1) is reviewed for clear 

error. United States v. McAllister, 272 F.3d 228, 234 

(4th Cir. 2001). Under a clear error standard of review, this 

court will reverse only if “left with the definite and firm 

conviction that a mistake has been committed.” United States v. 
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Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation 

marks omitted).

The definition of “dangerous weapon” is found in the 

commentary to USSG § 1B1.1. That section defines dangerous 

weapon as

(i) an instrument capable of inflicting death or 

serious bodily injury; or (ii) an object that is not 

an instrument capable of inflicting death or serious 

bodily injury but (I) closely resembles such an 

instrument; or (II) the defendant used the object in a 

manner that created the impression that the object was 

such an instrument.

USSG § 1B1.1, comment. (n.1(D)). Thompson argues that the 

devices were neither dangerous weapons, nor did they resemble 

dangerous weapons because each was labeled “simulator.” The 

court accurately observed, however, that each simulator was 

labeled “explosive” and each actually resembled the weapon it 

was designed to simulate. In addition, the court emphasized 

that the warning labels on the stimulators state that the user 

should immediately throw the simulators after removing the 

safety caps or pulling the detonation cords. On these facts, we 

conclude that the district court did not clearly err in imposing 

the USSG § 2D1.1 enhancement.

II. Explanation of Sentence

Thompson next argues that the court offered an 

inadequate explanation of his sentence, despite the fact that he 
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requested a variance. While the district court must conduct an 

individualized assessment of the defendant, the court is not 

required to “robotically tick through § 3553(a)’s every 

subsection” on the record. United States v. Johnson, 445 F.3d 

339, 345 (4th Cir. 2006). The sentencing court’s explanation 

must be “sufficient ‘to satisfy the appellate court that [the 

district court] has considered the parties’ arguments and has a 

reasoned basis for exercising [its] own legal decisionmaking 

authority.’” United States v. Boulware, 604 F.3d 832, 837 

(4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 

356 (2007)). But when a sentencing court decides to simply 

apply the Guidelines, “doing so will not necessarily require 

lengthy explanation.” Rita, 551 U.S. at 356. As we recently 

stated:

Gall

United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009), 

cert. denied, Martin v. United States, 130 S. Ct. 2128 (2010). 

(internal citations, quotation marks and brackets omitted). 

was quite explicit that district courts should 

provide more significant justifications for major 

departures than for minor ones. But when a district 

court does not depart or vary at all, it may provide a 

less extensive, while still individualized, 

explanation. This is because guidelines sentences 

themselves are in many ways tailored to the individual 

and reflect approximately two decades of close 

attention to federal sentencing policy.

We conclude that Thompson’s claim is without merit. 

The district court discussed the seriousness of trying to sell 
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explosives in the course of a drug transaction, noted Thompson’s 

escalating criminal history, and, while recognizing the 

disparity between powder cocaine and cocaine base, declined to 

vary in light of the seriousness of the offense. We decline to 

disturb the sentence as unreasonable.

III. Fair Sentencing Act

Thompson also requests that his sentence be vacated 

and remanded in light of the Fair Sentencing Act of 2010. The 

Fair Sentencing Act, which reduces the cocaine/cocaine base 

disparity by amending the drug quantities triggering the 

statutory penalties, is not retroactive but only applicable to 

defendants who commit their offenses after its effective date. 

See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010); 

United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010), 

petition for cert. filed, ___ U.S.L.W. ___ (U.S. Feb 24, 2011) 

(No. 10-9224); United States v. Bell, 624 F.3d 803, 814 

(7th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 

(11th Cir. 2010), petition for cert. filed, ___ U.S.L.W. ___ 

(U.S. Feb. 15, 2011) (No. 10-9271); United States v. Carradine, 

621 F.3d 575, 580 (6th Cir. 2010), cert. denied, ___ U.S.L.W. 

___ (U.S. Mar. 21, 2011) (No. 10-8937). Since Thompson’s 

offense predates the effective date of the Fair Sentencing Act, 

it does not apply to his case.
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Accordingly, we deny Thompson’s motion for leave to 

file a pro se supplemental brief and affirm the judgment of 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