United States v. Shull , 232 F. App'x 367 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4551
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN LEE SHULL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:04-cr-00018)
Submitted: June 20, 2007 Decided: July 12, 2007
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Fredilyn Sison, Assistant Federal Defender, Asheville, North
Carolina, for Appellant. Gretchen C.F. Shappert, United States
Attorney, Charlotte, North Carolina; Don D. Gast, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Lee Shull pled guilty to two bank robberies in
North Carolina and one in Tennessee. He was sentenced to 240
months for each North Carolina robbery and 293 months for the
Tennessee robbery. The sentences ran concurrently. We previously
vacated the sentences and remanded for resentencing light of United
States v. Booker, 543 U.S. 220 (2005). Following resentencing, the
district court imposed the identical sentences. Shull now appeals,
contending that the district court erred when it increased his
offense level by six points for possession of a firearm during the
Tennessee robbery. Finding no error, we affirm.
At resentencing, the district court found by a
preponderance of the evidence presented at the sentencing hearing
that Shull had displayed and pointed a pistol at a bank teller.
Accordingly, he had “otherwise used” a firearm during the Tennessee
robbery, warranting the six-level enhancement. See U.S. Sentencing
Guidelines Manual § 2B3.1(b)(2)(B) (2003). It is established that
the district court’s use of the preponderance of the evidence
standard while applying the guidelines as advisory does not violate
the Sixth Amendment. United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005).
Shull’s sentence falls within the applicable statutory
maximum and the properly calculated advisory guideline range.
Further, the district court considered the factors set forth at 18
- 2 -
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) when imposing sentence.
We conclude that the sentence is reasonable. See United States v.
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 121 S. Ct. 2309(2006); United States v. Hughes, 410 F.3d 540, 546 (4th Cir. 2005).
We accordingly affirm.* We dispense with oral argument because the
facts and legal arguments are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
*
Because the sentence is not above the advisory guideline
range but was instead correctly determined, we reject Shull’s claim
that the sentence is unreasonable because the district court did
not state how a sentence above the advisory range serves the
purposes of 18 U.S.C.A. § 3553(a).
- 3 -