United States v. Zerkle , 252 F. App'x 531 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4317
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HOWARD ZERKLE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00207-WLO)
Submitted: October 15, 2007 Decided: October 26, 2007
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Robert M. Hamilton, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Zerkle pled guilty pursuant to a plea agreement to
one count of making false statements on a bank loan application, in
violation of 18 U.S.C.A. §§ 1014, 2 (West 2000 & Supp. 2007); money
laundering, in violation of 18 U.S.C. §§ 1957(a), (b), 2 (2000);
and two counts of mail fraud, in violation of 18 U.S.C.A. § 1341(West Supp. 2007). He was sentenced to sixty-nine months’
imprisonment and three years’ supervised release. The sixty-nine
months was near the middle of the advisory Sentencing Guidelines
range of imprisonment. On appeal, Zerkle contends the sentence is
unreasonable because it is greater than necessary to accomplish the
goals of 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). We
affirm.
We will affirm the sentence imposed by the district court
as long as it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
Although the guidelines are no longer mandatory, they must still be
consulted and taken into account when sentencing. United States v.
Booker, 543 U.S. 220, 264 (2005). A sentence within a properly
calculated advisory guideline range is presumptively reasonable.
United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert.
denied, 126 S. Ct. 2309 (2006); see Rita v. United States, 127 S.
Ct. 2456 (2007) (upholding presumption of reasonableness). This
presumption can only be rebutted by showing the sentence is
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unreasonable when measured against the § 3553(a) factors. United
States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006), cert.
denied, 127 S. Ct. 3044 (2007).
“After Booker, sentencing requires two steps. First, the
district court must consult the Sentencing Guidelines and correctly
calculate the range provided by the Guidelines. Second, the court
must consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) and then impose a sentence.”
United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006) (citations
omitted), petition for cert. filed (June 20, 2006) (No. 05-11659).
“In doing so, the district court should first look to whether a
departure is appropriate based on the Guidelines Manual or relevant
case law.” United States v. Moreland, 437 F.3d 424, 432 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). “If an appropriate
basis for departure exists, the district court may depart. If the
resulting departure range still does not serve the factors set
forth in § 3553(a), the court may then elect to impose a non-
guideline sentence (a ‘variance sentence’).” Id.
We find the sentence reasonable. Given the seriousness
of the offense, the number of victims involved and the need to
deter others from engaging in the same conduct, Zerkle failed to
rebut the presumption of reasonableness. Accordingly, we affirm
the convictions and sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in
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the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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