United States v. Thompson , 235 F. App'x 88 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4006
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT EUGENE THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:06-cr-00026-jpj-1)
Submitted: June 20, 2007 Decided: July 30, 2007
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson,
Assistant Federal Public Defender, Christine Madeleine Spurell,
Research and Writing Attorney, Abingdon, Virginia, for Appellant.
John L. Brownlee, United States Attorney, Zachary T. Lee, Special
Assistant United States Attorney, Jennifer R. Bockhoust, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Eugene Thompson pled guilty to conspiracy to
distribute five grams or more of cocaine base, 21 U.S.C. § 846(2000), and distribution of five grams or more of cocaine base, 21
U.S.C. § 841(a)(1) (2000). He was sentenced to concurrent 120-
month prison terms. He now appeals his sentence. We affirm.
In imposing a sentence post-Booker, the sentencing court
must calculate the appropriate advisory guideline range, making any
necessary factual findings. The court then should consider that
range in conjunction with the factors set out at 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006), and determine a proper
sentence. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.
2006). The sentence must be “within the statutorily prescribed
range and . . . reasonable.” United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005) (citations omitted). “[A] sentence
within the properly calculated Guidelines range . . . is
presumptively reasonable.” United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Thompson’s sentence falls within the statutory range of
not more than forty years for each offense. See 21 U.S.C.
§ 841(b)(1)(B) (2000). Further, the district court correctly
determined the advisory guideline range of 120-150 months in
prison. In this regard, we note that, after Booker and consistent
with the Sixth Amendment, sentencing factors continue to be
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evaluated based on a preponderance of the evidence. United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). We conclude
that the sentence is reasonable. See United States v. Montes-
Pineda, 445 F.3d 375, 380 (4th Cir. 2006), petition for cert.
filed, U.S.L.W. ____ (U.S. July 21, 2006) (No. 06-5439); Green,
436 F.3d at 457.
We deny the motion to strike the reply brief and 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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