United States v. Penniegraft , 213 F. App'x 239 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4519
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TOMMY PENNIEGRAFT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (1:03-cr-00454-JAB-5)
Submitted: December 18, 2006 Decided: January 18, 2007
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, THE LAW OFFICES OF AMES C. CHAMBERLIN, PLLC,
Greensboro, North Carolina, for Appellant. Angela Hewlett Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tommy Penniegraft pled guilty to conspiracy to commit
loan, mail, wire, and bank fraud, in violation of 21 U.S.C. § 371(2000). He was sentenced to twenty-eight months in prison. After
Penniegraft noted his appeal, we granted his unopposed motion to
remand for resentencing in light of United States v. Booker, 543
U.S. 220 (2005). At resentencing, the district court considered
Penniegraft’s advisory guideline range in conjunction with the
factors set forth at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006)
and again imposed a sentence of twenty-eight months. Penniegraft
now appeals. His attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that there are
no meritorious issues for review. Although Penniegraft was
informed of his right to file a pro se supplemental brief, he did
not file such a brief. We now affirm the conviction and sentence.
In imposing a sentence post-Booker, the sentencing court
must calculate the appropriate advisory guideline range, making any
necessary factual findings. The court then should consider that
range in conjunction with the factors set out at 18 U.S.C.A.
§ 3553(a) and determine a proper sentence. United States v.
Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005)
(citations omitted). “[A] sentence within the properly calculated
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Guidelines range . . . is presumptively reasonable.” United
States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006).
Here, the twenty-eight month sentence falls within the
statutory range of not more than five years in prison. See 18
U.S.C. § 371. Further, the district court correctly determined the
advisory guideline range of 24-30 months and, after consideration
of the § 3553(a) factors, imposed a sentence within that range. We
find that the resulting twenty-eight-month sentence is reasonable.
See United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir.
2006), petition for cert. filed, U.S.L.W. (U.S. July 21,
2006) (No. 06-5439); Green, 436 F.3d at 457.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm the conviction and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel’s motion
must state that a copy of such motion was served on the client. 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.
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AFFIRMED
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