United States v. Sharpe , 312 F. App'x 509 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4743
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH WAYNE SHARPE,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-6561)
Submitted: May 6, 2008 Decided: June 3, 2008
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is before the court on remand from the United
States Supreme Court. Pursuant to a plea agreement, Kenneth Wayne
Sharpe pled guilty to one count of possession of child pornography
which had been transported in interstate and foreign commerce, in
violation of 18 U.S.C.A. § 2252A(a)(5)(B), (b)(2) (West 2000 &
Supp. 2007). Sharpe sought a sentence of house arrest because he
has cancer. The district court sentenced Sharpe to sixty-three
months in prison, the bottom of the advisory Guidelines range. We
affirmed Sharpe’s sentence. United States v. Sharpe, 241 F. App’x
131 (4th Cir. 2007). The Supreme Court vacated our judgment and
remanded the case for further consideration in light of Gall v.
United States, 128 S. Ct. 586 (2007). Sharpe v. United States, 128
S. Ct. 877 (2008). After reviewing Sharpe’s sentence as directed,
we affirm.
In sentencing a defendant after United States v. Booker,
543 U.S. 220 (2005), a district court must correctly calculate the
appropriate advisory Guidelines range. Gall, 128 S. Ct. at 596
(citing Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). The
court then must consider that range in conjunction with the 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007) factors. Gall, 128 S.
Ct. at 596. In determining an appropriate sentence, the district
court “may not presume that the Guidelines range is reasonable,”
but rather “must make an individualized assessment based on the
facts presented.” Id. at 596-97.
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This court reviews the sentence imposed by the district
court for abuse of discretion. Id. at 597; see also United States
v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We first must ensure
that the district court committed no procedural error, such as
“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--including an explanation for any deviation from the
Guidelines range.” Gall, 128 S. Ct. at 597.
If there are no procedural errors, we then consider the
substantive reasonableness of the sentence. Id. “Substantive
reasonableness review entails taking into account the ‘totality of
the circumstances, including the extent of any variance from the
Guidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall, 128 S.
Ct. at 597).
With these standards in mind, we find no abuse of
discretion by the district court. The court followed the necessary
procedural steps in sentencing Sharpe, properly calculating the
Guidelines range and considering that recommendation in conjunction
with the § 3553(a) factors. We also find that the district court
meaningfully articulated its consideration of the § 3553(a) factors
and its decision to sentence Sharpe within the Guidelines range.
Accordingly, having considered Sharpe’s sentence in light
of Gall, we affirm. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process
AFFIRMED
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