United States v. McKinney , 257 F. App'x 681 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4088
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEAN ANDREW MCKINNEY, a/k/a Red,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:03-cr-00059-IMK)
Submitted: June 29, 2007 Decided: December 13, 2007
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Robert H. McWilliams, Jr., Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jean Andrew McKinney was convicted by a jury of making a
threatening telephone call in violation of 18 U.S.C. § 875(b)
(2000) and was sentenced to fifty-seven months of incarceration.
We affirmed his conviction on appeal but vacated and remanded his
sentence in light of United States v. Booker, 543 U.S. 220 (2005).
On remand, the district court again sentenced him to fifty-seven
months of imprisonment, the bottom of his properly-calculated
Sentencing Guidelines range of 57-71 months of imprisonment. On
appeal, McKinney raises two issues, whether: (1) the district
court’s resentencing was erroneous in light of McKinney’s age,
health, and criminal history, and (2) a presumption of correctness
for a sentence within the advisory sentencing range renders the
federal Sentencing Guidelines mandatory. For the reasons that
follow, we affirm.
First, the record is uncontroverted that the district
court took into consideration McKinney’s age, health, criminal
history, and other factors at his resentencing. The court also
referred to the factors listed in 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2007). The court again sentenced McKinney to fifty-seven
months of imprisonment. Under these circumstances, we find the
sentence to be reasonable. United States v. Moreland, 437 F.3d
424, 433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
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Second, we have held that a sentence within a
properly-calculated advisory sentencing range is presumptively
reasonable. United States v. Green, 436 F.3d 449, 455-56 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006); United States v.
Johnson, 445 F.3d 339, 341, 344 (4th Cir. 2006). The Supreme Court
has recently approved of the presumption. See Rita v. United
States, 127 S. Ct. 2456 (2007) (holding that an appellate court may
apply a presumption of reasonableness to a district court’s
sentence that reflects a proper application of the Sentencing
Guidelines). McKinney has failed to rebut the presumption of
reasonableness 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), cert. denied, 127
S. Ct. 3044 (2007).
Accordingly, we affirm McKinney’s 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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