United States v. Gibson ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4658
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONYA S. GIBSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (1:05-cr-00126-5)
Submitted: December 21, 2006 Decided: December 29, 2006
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John H. Tinney, Jr., THE TINNEY LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Charleston, West Virginia, Miller A. Bushong III,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tonya S. Gibson pled guilty to aiding and abetting money
laundering, 18 U.S.C. § 1956(a)(1)(B)(I) (2000), and was sentenced
to a term of sixty-six months imprisonment. Gibson appeals her
sentence, alleging that the district court’s consideration of facts
she did not admit in determining her base offense level and a two-
level enhancement for sophisticated money laundering under U.S.
Sentencing Guidelines Manual § 2S1.1(b)(3) (2005), violated the
Sixth Amendment, pursuant to United States v. Booker, 543 U.S. 220(2005). Because Gibson did not raise this issue below, we review
it for plain error. United States v. Olano, 507 U.S. 725, 732-37
(1993). We affirm.
Gibson was sentenced in June 2006 under the advisory
guideline system mandated by Booker. After Booker, courts must
calculate the appropriate advisory guideline range, consider the
range in conjunction with other relevant factors under the
guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and
impose a sentence. United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). To determine the advisory guideline range, the court
must consider relevant conduct. See United States v. Moreland, 437
F.3d 424, 432 (4th Cir. 2006) (“[T]he court must correctly
determine, after making appropriate findings of fact, the
applicable guideline range.”); see also United States v. Chau, 426
F.3d 1318, 1323-24 (11th Cir. 2005) (in advisory guideline system,
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district court may find facts that go beyond defendant’s
admissions); United States v. McKinney, 406 F.3d 744, 747 (5th Cir.
2005) (court may calculate advisory guideline range based on facts
neither admitted by defendant nor found by jury beyond reasonable
doubt). Therefore, we discern no error, much less plain error, in
the district court’s consideration of Gibson’s relevant conduct.
Accordingly, we affirm the sentence imposed by the
district court. 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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