United States v. Southern ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5012
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER FITZGERALD SOUTHERN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-05-61)
Submitted: March 23, 2006 Decided: March 28, 2006
Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Clifton Thomas Barrett; Angela
Hewlett Miller, Assistant United States Attorneys, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Christopher F. Southern appeals his 320-month sentence
resulting from his guilty plea for interference with commerce by
attempted robbery, 18 U.S.C. § 1951 (2000), discharging a firearm
during attempted robbery, 18 U.S.C. § 924(c)(1)(A)(iii) (2000), and
carjacking, 18 U.S.C. § 2119 (2000). Southern’s attorney has filed
a brief in accordance with Anders v. California, 386 U.S. 738(1967), certifying there are no meritorious issues for appeal, but
raising the issue of whether Southern’s sentence was unduly harsh.
Finding no reversible error, we affirm.
After the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), a sentencing court is no longer bound by the
range prescribed by the Sentencing Guidelines. See United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in
determining a sentence post-Booker, sentencing courts are still
required to calculate and consider the guideline range as well as
the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2005). Id. As stated in Hughes, this Court will affirm a
post-Booker sentence if it is both reasonable and within the
statutorily prescribed range. Id. at 546-47. Further, this court
has stated that “while we believe that the appropriate
circumstances for imposing a sentence outside the guideline range
will depend on the facts of individual cases, we have no reason to
doubt that most sentences will continue to fall within the
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applicable guideline range.” United States v. White, 405 F.3d 208,
219 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005). Indeed, “a
sentence imposed ‘within the properly calculated Guidelines range
. . . is presumptively reasonable.’” United States v. Green, 436
F.3d 449, 456-57 (4th Cir. 2006) (quoting United States v. Newsom,
428 F.3d 685, 687 (7th Cir. 2005), cert. denied, S. Ct. , 74
U.S.L.W. 3486 (U.S. Feb. 27, 2006) (No. 05-8986)).
We find that the district court properly calculated the
guideline range and appropriately treated the guidelines as
advisory. The court sentenced Southern only after considering and
examining the factors set forth in § 3553(a). The court also
clearly noted that it found the guidelines, though advisory, “an
adequate basis to provide a sufficient and just punishment but not
greater than necessary to punish the Defendant in this case for his
conduct.” Based on these factors, and because the court sentenced
Southern within the applicable guideline range and the statutory
maximum, we find that Southern’s sentence of 320 months of
imprisonment is reasonable.
Pursuant to Anders, we have examined the entire record
and considered Southern’s pro se supplemental brief and find no
meritorious issues for appeal. Accordingly, we affirm Southern’s
convictions and sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
of the United States for further review. Accordingly, we also deny
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counsel’s motion to withdraw as counsel. If the client requests
that a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may renew his motion for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. 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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