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 2007-08

United States v. Orange , 246 F. App'x 209 ( 2007 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE ORANGE, a/k/a Dre,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:06-cr-00257-HEH)
Submitted:   May 23, 2007                 Decided:   August 27, 2007
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Esther J. Windmueller, Richmond, Virginia; Muriel-Theresa Pitney,
THE LAW OFFICE OF MURIEL PITNEY, PLC, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Roderick C.
Young, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A    jury    found    Andre   Orange    guilty   of    one     count    of
influencing a prospective witness to provide false testimony, in
violation of
    18 U.S.C. §§ 1512
    (b)(3), 2 (2000).                  He was acquitted
of the charge of being an accessory-after-the-fact to a murder. On
appeal, Orange claims the district court erred by not incorporating
his   proposed       affirmative      defense      instruction      into    the     jury
instructions.         He also claims the district court should have
imposed a variant sentence because the advisory guidelines sentence
was based in part on acquitted conduct.                We affirm.
Because Orange did not object to the district court’s
jury instructions, we review for plain error.                    United States v.
Nicolaou,
    180 F.3d 565
    , 569 (4th Cir. 1999).                Under the plain error
standard, Orange must show:           (1) there was error; (2) the error was
plain; and (3) the error affected his substantial rights.                         United
States   v.       Olano,
    507 U.S. 725
    ,    732-34   (1993).         When    these
conditions are satisfied, we may exercise our discretion to notice
the error only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”
    Id. at 736
     (internal quotation marks omitted).                    The burden of showing
plain error is on the defendant.             United States v. Strickland,
    245 F.3d 368
    , 379-80 (4th Cir. 2001).                    Orange failed to show the
alleged error was obvious or that his substantial rights were
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affected by the alleged error.             As a result, there was no plain
error.
With respect to the sentence, we note there was no error
in considering acquitted conduct in determining the sentence under
the advisory guidelines.          United States v. Williams,
    399 F.3d 450
    ,
454 (2d Cir. 2005); United States v. Romulus,
    949 F.2d 713
    , 716-17
(4th Cir. 1991).       We review a post-United States v. Booker,
    543 U.S. 220
     (2005) sentence “to determine whether the sentence is
within the statutorily prescribed range and is reasonable.” United
States v. Moreland,
    437 F.3d 424
    , 433 (4th Cir.), cert. denied,
    126 S. Ct. 2054
     (2006) (internal quotation marks and citation omitted).
“[A] sentence within the proper advisory Guidelines range is
presumptively reasonable.” United States v. Johnson,
    445 F.3d 339
    ,
341 (4th Cir. 2006). “[A] defendant can only rebut the presumption
by demonstrating that the sentence is unreasonable when measured
against the [18 U.S.C.] § 3553(a) factors.”                     United States v.
Montes-Pineda,
    445 F.3d 375
    ,    379    (4th   Cir.      2006)   (internal
quotation marks and citation omitted), petition for cert. filed, __
U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439).                    While a district
court must consider the various § 3553(a) factors and explain its
sentence, it need not explicitly reference § 3553 or discuss every
factor   on    the   record.      Johnson,
    445 F.3d at 345
    .    This   is
particularly the case when the court imposes a sentence within the
applicable guideline range.
    Id.
    - 3 -
We find Orange’s sentence was reasonable and there was no
error in the district court’s decision to deny his request for a
variant sentence.
Accordingly, we affirm the conviction and sentence.   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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