United States v. Gollick , 258 F. App'x 519 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5211
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES GOLLICK,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (1:03-cr-00160)
Submitted: November 21, 2007 Decided: December 11, 2007
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sante E. Boninsegna, Jr., Pineville, West Virginia, for Appellant.
John J. Frail, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Gollick pled guilty to possession with intent to
distribute a quantity of oxycodone, also known as oxycontin, in
violation of 21 U.S.C. § 841(a)(1) (2000), and the district court
sentenced him to eighty-seven months in prison and three years of
supervised release. On appeal, we affirmed Gollick’s conviction,
vacated his sentence, and remanded for resentencing in accordance
with United States v. Booker, 543 U.S. 220 (2005). On remand, the
district court resentenced Gollick to seventy months in prison and
three years of supervised release. Gollick’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting, in his opinion, there are no meritorious grounds for
appeal but raising the issues of whether the district court erred
in sentencing to him to seventy months based on its determination
of drug weight following conversion of the pills attributed to him
to marijuana for sentencing purposes, and the increase in his
sentence based on Blakely v. Washington, 542 U.S. 296 (2004).
Gollick was advised of his right to file a pro se supplemental
brief but has not done so. Finding no error, we affirm.
We will affirm a sentence imposed by the district court
as long as it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
Although the guidelines are no longer mandatory, they must still be
consulted and taken into account when sentencing. Booker, 543 U.S.
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at 264. An error of law or fact can render a sentence
unreasonable. United States v. Green, 436 F.3d 449, 456 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). We review a district
court’s factual findings for clear error and its legal conclusions
de novo. United States v. Hampton, 441 F.3d 284, 287 (4th Cir.
2006). Issues not raised in the district court are reviewed for
plain error. Hughes, 401 F.3d at 547.
When sentencing, the district court must: (1) properly
calculate the guideline range; (2) determine whether a sentence
within that range serves the factors under 18 U.S.C. § 3553(a)
(2000); (3) implement mandatory statutory limitations; and (4)
explain its reasons for selecting a sentence, especially a sentence
outside the range. Green, 436 F.3d at 455-56. A sentence within
a properly calculated range is presumed to be reasonable. Id. at
457; see Rita v. United States, 127 S. Ct. 2456 (2007) (upholding
presumption). This presumption can only be rebutted by showing 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).
At Gollick’s initial sentencing, the district court
determined his base offense level was twenty-eight under U.S.
Sentencing Guidelines Manual § 2D1.1(c) (2001) after adopting
findings in the presentence report that he was responsible for 3100
eighty-milligram oxycontin tablets. With a three-level reduction
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for acceptance of responsibility and criminal history category III,
Gollick’s guideline range was seventy to eighty-seven months.
Although Gollick did not object to the presentence report, we
concluded his silence did not constitute an admission under Booker
and the district court plainly erred by sentencing him under the
mandatory guidelines based on its findings. On remand, we directed
the district court to first determine the appropriate sentencing
range under the guidelines, making all factual findings appropriate
for that determination, and then to consider that range along with
the other § 3553(a) factors when imposing a sentence.
At the resentencing hearing, the district court noted it
was under direction to calculate the guideline range by finding
drug quantities by a preponderance of the evidence and to impose a
sentence that was reasonable under the circumstances of the case,
taking the guidelines into consideration and recognizing the fact
that the guidelines were no longer mandatory. Gollick requested a
recalculation of the guideline range based only on the ninety and
one-half pills seized from him, contending the Government’s other
evidence was hearsay and he never had an opportunity to cross
examine any of the people on which the original presentence report
was based. Gollick did not, however, testify or provide any other
evidence or argument specifically challenging the number of pills
or weight of the drugs attributed to him in the presentence report.
The Government argued that in addition to the pills seized from
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Gollick, the relevant conduct was largely based on his own
statements. Further, if Gollick did in fact challenge relevant
conduct, the Government would question whether he would be entitled
to a reduction for acceptance of responsibility.
The district court overruled Gollick’s objection and
adopted its factual findings and guideline calculations from the
original sentencing. Therefore, Gollick’s advisory guideline range
was seventy to eighty-seven months. The court then heard argument
as to where Gollick should be resentenced. Gollick’s counsel
requested the bottom of the range, based on his considerable
efforts to reform himself since his original sentencing and the
fact that seventy months was sufficient punishment for the charge.
Gollick apologized to the court for his behavior during the last
sentencing hearing, and to his family and others affected by his
bad choices while he was involved with drugs. The district court
resentenced Gollick to seventy months. The court explained it had
reduced his sentence from the top of the guideline range to the
bottom, because the court was impressed with the progress he had
made, as evidenced by the materials he submitted documenting the
programs he had completed, as well as his change in attitude.
In the Anders brief, counsel questions whether the
district court erred in determining the drug weight for sentencing
purposes and increasing his sentence based on that calculation, but
he concludes that the guideline range was properly calculated. He
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also notes that Gollick’s sentence on remand was reduced seventeen
months from his original sentence. Based on our review of the
record, we conclude the district court did not clearly err in
adopting its previous findings regarding relevant conduct based on
a preponderance of the evidence, and the court properly calculated
the guideline range. We further conclude that Gollick’s sentence
at the bottom of the range was reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment. 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 thereof
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.
AFFIRMED
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