United States v. Mobley , 311 F. App'x 574 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4538
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THURMAN MOBLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:99-cr-00165-8)
Submitted: April 8, 2008 Decided: April 22, 2008
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mekka Jeffers-Nelson, LAW OFFICE OF MEKKA JEFFERS-NELSON,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Adam Morris, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Thurman Mobley was convicted of
conspiracy to possess with intent to distribute and to distribute
cocaine base (crack), and conspiracy to use, carry, and possess
firearms during and in relation to a drug trafficking offense. On
a special verdict form, the jury found that the drug conspiracy
involved “at least 5 grams but less than 50 grams of cocaine base.”
The district court found that Mobley was responsible for between 35
and 50 grams of cocaine base and originally sentenced him to 170
months in prison. This court affirmed Mobley’s conviction, but
vacated his sentence and remanded for resentencing in accordance
with United States v. Booker, 543 U.S. 220 (2005).
On remand, the district court conducted a resentencing
hearing and again determined that Mobley was responsible for 35 to
50 grams of cocaine base. After considering the factors set forth
in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), the district
court sentenced Mobley to 160 months, noting that the lesser
sentence imposed on remand was due to Mobley’s successful record in
prison and the evidence presented concerning his ability to be a
productive citizen upon his release from prison.
Mobley again appeals, claiming that the district court
violated his Fifth and Sixth Amendment rights by enhancing his
sentence based on findings made by the court, rather than a jury.
Mobley’s claim is foreclosed by Booker and its progeny. After
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Booker, a district court is no longer bound by the range prescribed
by the sentencing guidelines. United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005). However, courts still must calculate the
applicable guideline range after making the appropriate findings of
fact and consider the range in conjunction with other relevant
factors under the guidelines and § 3553(a). Gall v. United States,
128 S. Ct. 586, 597-98 (2007). We will review the sentence under
an abuse of discretion standard regardless of whether the sentence
imposed is inside or outside of the guideline range. Id.Under an advisory guidelines scheme, a district court
does not violate the Fifth or Sixth Amendment by making factual
findings as to sentencing factors by a preponderance of the
evidence as long as the fact-finding does not enhance the sentence
beyond the maximum term specified in the substantive statute. See
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding
that “Booker does not in the end move any decision from judge to
jury, or change the burden of persuasion”), cert. denied, 127 S.
Ct. 121 (2006). Thus, we find no error by the district court in
determining the amount of drugs for which Mobley was responsible
within the broad quantity range specified by the jury.
Additionally, we find no error by the district court in adopting
the presentence report’s findings as to drug quantity where Mobley
failed to make an affirmative showing that the quantity
determination in the presentence report was wrong. See United
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States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (holding that,
where defendant failed to present evidence to contradict findings
in presentence report, the district court could adopt such findings
without further inquiry or explanation) (citations omitted).
In conclusion, Mobley’s claims are without merit.
Moreover, we find that the sentence imposed was reasonable. The
district court correctly calculated the applicable guideline range,
treated the guidelines as advisory, and considered the § 3553(a)
factors. Although the district court did not explicitly cite to
§ 3553(a), it was not required to do so. See United States v.
Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (holding that district
court “need not robotically tick through § 3553(a)’s every
subsection”). The 160-month sentence imposed was in the middle of
the applicable advisory guideline range and well below the
statutory maximum sentence of life imprisonment. See 21 U.S.C.A.
§ 841(b)(1)(B). We find that the sentence is reasonable. See
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) (“A
sentence within the proper Sentencing Guidelines range is
presumptively reasonable.”); see Rita v. United States, 127 S. Ct.
2456, 2462-69 (2007) (upholding presumption of reasonableness for
within-guidelines sentence).
Accordingly, we affirm Mobley’s sentence. We dispense
with oral argument because the facts and legal contentions are
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adequately addressed in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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