United States v. Marker ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAYMOND M. MARKER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:04-cr-00010)
Submitted: November 30, 2007 Decided: December 27, 2007
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nils E. Gerber, NILS E. GERBER, ATTORNEY AT LAW, Winston-Salem,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, L. Patrick Auld, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond M. Marker appeals from the 108-month sentence
imposed after we remanded for resentencing in accordance with
United States v. Booker, 543 U.S. 220 (2005), and United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005). He contends that his
sentence amounts to “cruel and unusual punishment” in violation of
the Eighth Amendment, and that the sentence imposed was
unreasonable. Finding no error, we affirm.
Marker first argues that the 108-month sentence violates
his right to be free from cruel and unusual punishment. However,
his Eighth Amendment claim necessarily fails, as proportionality
review is unavailable “for any sentence less than life imprisonment
without the possibility of parole.” United States v. Ming Hong,
242 F.3d 528, 532 (4th Cir. 2001).
Marker also argues that the sentence imposed by the
district court was unreasonable in light of his lack of criminal
history and his poor health. We find that the district court
properly determined the appropriate sentencing range under the
guidelines, properly applied the guidelines as advisory and, after
considering Marker’s arguments and the § 3553(a) factors, imposed
a sentence within the guideline range. We find that the 108-month
sentence is reasonable. See Rita v. United States, 127 S. Ct.
2456, 2462-69 (2007); United States v. Green, 436 F.3d 449, 457
(4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). Accordingly, we
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affirm Marker’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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