United States v. Hailey , 232 F. App'x 300 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4960
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONY LEROY HAILEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00080-WLO)
Submitted: May 30, 2007 Decided: July 9, 2007
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Gregory Davis, Senior
Litigator, Winston-Salem, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Kearns Davis, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Leroy Hailey pled guilty to possession of
methamphetamine with intent to distribute, 21 U.S.C.A. § 841(a),
(b)(1)(B) (West 1999 & Supp. 2007), and was sentenced to a term of
seventy-eight months imprisonment. Hailey appeals his sentence,
contending first that the district court erred in applying a
two-level adjustment for obstruction of justice, U.S. Sentencing
Guidelines Manual § 3C1.1 (2005), next challenging our standard of
review for sentences as an unconstitutional post-Booker1 return to
mandatory guideline sentences, and also arguing that his sentence
was unreasonable. We affirm.
Hailey was arrested and detained on state drug charges
after he sold methamphetamine to an informant. His residence was
searched and detectives found eighty-two grams of methamphetamine,
a digital scale, two rifles, and a shotgun. During the search,
Hailey stated that the drugs belonged to his brother, who was in
jail and had asked him to get the drugs from the safe at their
mother’s house and hold it until he made bond. Hailey also said,
as the firearms were removed from his residence, “No, don’t take my
guns.” After he was taken into custody, Hailey waived his Miranda2
rights and made a written statement in which he said the three
firearms were his.
1
United States v. Booker, 543 U.S. 220 (2005).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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While Hailey was confined on the state charges, he had a
conversation with his mother on a recorded telephone line, in which
he told her that he needed to have someone retrieve his guns from
the Sheriff’s Department, claim ownership of the guns, and assert
that Hailey had lied when he said the guns were his. Otherwise,
Hailey feared that federal charges would be filed against him
because, as a convicted felon, he was prohibited under federal law
from possessing firearms. No one claimed the guns and federal
charges were later brought against Hailey for possession of
methamphetamine with intent to distribute and possession of a
firearm by a convicted felon.
Under the terms of his plea agreement, Hailey pled guilty
to the drug offense and the firearm charge was dismissed. At
sentencing, the government agreed to the elimination of the
dangerous weapon enhancement recommended in the presentence report
under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2005).3
However, the district court determined that Hailey’s recorded
statements to his mother supported an adjustment for obstruction of
justice.
On appeal, Hailey first claims that, because his
conversation with his mother concerned the firearms offense, and
the firearms count was dismissed, the conversation did not relate
3
The record does not reflect the government’s reasons for
agreeing to the elimination of the dangerous weapon enhancement.
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to the instant offense of conviction and could not be the basis for
an obstruction of justice adjustment. This argument is reviewed
for plain error because Hailey did not make it in the district
court. United States v. Hadden, 475 F.3d 652, 670 (4th Cir. 2007).
However, we find no error, plain or otherwise. See United
States v. Burke, 345 F.3d 416, 428-30 (6th Cir. 2003) (action
intended to impede investigation that resulted in defendant’s plea
bargain and conviction supported obstruction of justice adjustment,
though action related to charge that was dropped as part of plea
bargain).
Hailey also contends that his conversation with his
mother does not support the § 3C1.1 adjustment because he did not
explicitly ask her to perjure herself or to find someone who would
do so. However, the record discloses that Hailey specifically told
his mother that he wanted someone to lie to the authorities about
who owned the guns to help him avoid a federal firearms charge.
The district court did not clearly err in finding that this conduct
constituted an attempt to obstruct justice.
Hailey next asserts that our precedents have returned
this Circuit to a mandatory guideline scheme. See United States v.
Green, 436 F.3d 449, 457 (4th Cir.) (holding that sentence within
advisory guideline range is presumptively reasonable), cert.
denied, 126 S. Ct. 2309 (2006), and United States v. Moreland, 437
F.3d 424, 434 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006)
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(holding that “[t]he farther the court diverges from the advisory
guideline range, the more compelling the reasons for the divergence
must be”). We disagree. Moreover, as Hailey acknowledges, a panel
of this court may not overrule the decision of another panel.
United States v. Chong, 285 F.3d 343, 346 (4th Cir. 2002).
Finally, Hailey argues that his sentence was unreasonable
because it was greater than necessary to comply with the purposes
of 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), and suggests
that the mandatory minimum sentence of five years would be
sufficient. After Booker, a district court is no longer bound by
the range prescribed by the sentencing guidelines. However, courts
still must calculate the applicable guideline range after making
the appropriate findings of fact and must consider the range in
conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a). Moreland, 437 F.3d at 432. “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.’” Id. at 432 (quoting United States v.
Dean, 414 F.3d 725, 729 (7th Cir. 2005)). This court will affirm
a post-Booker sentence if it “is within the statutorily prescribed
range and is reasonable.” Moreland, 437 F.3d at 433 (internal
quotation marks and citation omitted). “[A] sentence within the
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proper advisory Guidelines range is presumptively reasonable.”
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
In sentencing Hailey, the district court appropriately
treated the guidelines as advisory. The record shows that the
court considered and discussed many of the § 3553(a) factors,
including the seriousness of the offense, Hailey’s conduct after
his arrest, and his potential for rehabilitation. Hailey’s
seventy-eight-month prison term is in the middle of the guideline
range and is below the statutory maximum term of forty years
imprisonment under 21 U.S.C.A. § 841(b)(1)(B). Hailey does not
present any information so compelling as to rebut the presumption
that a sentence within the properly calculated guideline range is
reasonable. We conclude that Hailey’s sentence was reasonable.
We therefore affirm the sentence imposed by the district
court. 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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