United States v. Roe , 359 F. App'x 360 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5077
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PRESTON DARNELL ROE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00392-HEH-1)
Submitted: November 17, 2009 Decided: December 7, 2009
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William J. Dinkin, DINKIN & PURNELL, P.L.L.C., Richmond,
Virginia, for Appellant. Kevin Christopher Nunnally, Special
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Preston Roe appeals from the 120-month sentence
imposed by the district court upon his guilty plea to possession
of a firearm after having been convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1) (2006). Roe’s attorney has
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), in which he asserts that there are no meritorious
issues for appeal but questions the reasonableness of Roe’s
sentence. Although advised of his right to file a supplemental
pro se brief, Roe has not done so. For the reasons that follow,
we affirm.
Roe was indicted for murder in Virginia state court;
the jury found him guilty of the lesser-included offense of
being an accessory after the fact. Roe had testified that he
was present during the shooting but that he did not fire the
weapon — rather, he testified that he took the gun from the
shooter and sold it. Roe was then charged in federal court with
possessing a gun after having been convicted of a felony; he
pled guilty without a plea agreement. Roe’s advisory guidelines
range was 100-120 months imprisonment, based on a total offense
level of 27 and a criminal history category of IV.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, ___, 128 S. Ct. 586, 597 (2007). In conducting this review,
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this court first examines the sentence for “significant
procedural error,” including “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence. . . .”
Gall, 128 S. Ct. at 597.
The appellate court next “consider[s] the substantive
reasonableness of the sentence imposed.” Id. At this stage, we
take “into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Id. If
the sentence imposed is within the appropriate Guidelines range,
we presume on appeal that the sentence is reasonable. Rita v.
United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2459, 2462
(2007).
Roe argues that his sentence was procedurally
unreasonable because the district court failed to address “each
factor set forth” in § 3553(a). However, the district court is
not required to “robotically tick through § 3553(a)’s every
subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006). Nor is Roe’s sentence substantively unreasonable
because the district court considered Roe’s involvement in the
underlying murder. See United States v. Duncan, 400 F.3d 1297,
1304-05 (11th Cir. 2005) (holding that consideration of
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acquitted conduct does not violate the Sixth Amendment as long
as the judge does not impose a sentence that exceeds what is
authorized by the jury verdict).
We conclude that Roe’s sentence is procedurally and
substantively reasonable. The court correctly calculated his
advisory Guidelines range, considered the relevant § 3553(a)
factors, and explained its reasons for imposing the 120-month
sentence. See United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009) (requiring that the district court “place on the
record an individualized assessment based on the particular
facts of the case before it”). Roe cannot overcome the
presumption of reasonableness accorded his within-guidelines
sentence.
We therefore affirm. This court requires that counsel
inform Roe, in writing, of the right to petition the Supreme
Court of the United States for further review. If Roe requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Roe. 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
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