United States v. Peele , 210 F. App'x 317 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5275
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRYANT KEITH PEELE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CR-04-59-FL)
Submitted: November 27, 2006 Decided: December 18, 2006
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Jennifer May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryant Keith Peele appeals his conviction and 39-month
sentence pursuant to his guilty plea to one count of possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2000). His only argument on appeal is that his
sentence was unreasonable.
In imposing a sentence after United States v. Booker, 543
U.S. 220 (2005), courts still must calculate the applicable
guideline range after making the appropriate findings of fact and
consider the range in conjunction with other relevant factors under
the guidelines and § 3553(a). United States v. Moreland, 437 F.3d
424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). We will
affirm a post-Booker sentence if it “is within the statutorily
prescribed range and is reasonable.” Id. at 433 (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)
(citations omitted). “[A] defendant can only rebut the presumption
by demonstrating that the sentence is unreasonable when measured
against the § 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).
- 2 -
Peele argues that the hardship his incarceration will
cause his family warranted a sentence below the advisory guideline
range. “This Circuit has construed downward departures based on
family ties very narrowly.” United States v. Maddox, 48 F.3d 791,
799 (4th Cir. 1995). We have reviewed the record, the district
court’s decision, and the parties’ briefs on appeal, and conclude
that the circumstances facing Peele, while regrettable, do not rise
to the level of “extraordinary” and thus do not warrant a reduced
sentence. See, e.g., United States v. Bell, 974 F.2d 537, 538 (4th
Cir. 1992); United States v. Brand, 907 F.2d 31, 33 (4th Cir.
1990).
In addition, the district court properly weighed the
§ 3553(a) factors in determining Peele’s sentence. “The district
court need not discuss each factor set forth in § 3553(a) ‘in
checklist fashion;’ ‘it is enough to calculate the range accurately
and explain why (if the sentence lies outside it) this defendant
deserves more or less.’” Moreland, 437 F.3d at 432 (quoting United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)). The district
court adequately explained the reasons for Peele’s sentence, and
Peele has not rebutted the presumption that the sentence was
reasonable.
Accordingly, we affirm Peele’s conviction and sentence.
We dispense with oral argument because the facts and legal
- 3 -
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 4 -