United States v. Driver , 273 F. App'x 277 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4532
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CALVIN WATTY DRIVER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Graham C. Mullen,
Senior District Judge. (2:05-cr-00217)
Submitted: March 27, 2008 Decided: April 14, 2008
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
R. Edward Hensley, Jr., Maggie Valley, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Watty Driver appeals his sentence for aggravated
sexual abuse in Indian country, in violation of 18 U.S.C.
§§ 2241(a), 1153 (2000). Driver argues that the district court did
not adequately state its reasons for imposing his sentence because
it did not specifically discuss the factors enumerated in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), and that the district
court erred in enhancing his sentence based upon facts that were
determined by the court to be proven by a preponderance of the
evidence. We affirm.
On a rainy morning in July 2005, Driver was walking on
the side of a road in the Eastern Band of Cherokee Indian
Reservation in North Carolina. The victim, who knew Driver, was
driving to work and stopped to give Driver a ride to his father’s
residence. Driver told the victim that he had been up all night
drinking alcohol. When they arrived at the residence, Driver held
an open knife to the victim’s throat and forced her to leave her
vehicle and walk into the woods with him. Driver then forced her
back to the vehicle and made her lie down in the back seat. He
kept the knife pointed at her while he drove away from the
residence. Driver stopped the vehicle, got into the back seat, and
forced the victim to remove her clothes and engage in vaginal
intercourse with him.
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After driving around a little more, Driver again forced
the victim to engage in vaginal intercourse with him. Afterward,
Driver and the victim were both in the front seat with the knife
between them, and the victim grabbed the knife, jumped out of the
moving vehicle, and threw the knife into the woods. Driver stopped
and got out to look for the knife, and the victim got into the
driver’s seat and attempted to drive away. However, Driver came
back, forced her back to the passenger’s seat, drove to another
residence, and exited the vehicle. The victim drove to her place
of employment and contacted law enforcement officials.
The base offense level for Driver’s conduct, pursuant to
U.S. Sentencing Guidelines Manual (“USSG”) § 2A3.1 (2005), was
level 30. The probation officer who prepared Driver’s Presentence
Investigation Report recommended a four-level enhancement pursuant
to § 2A3.1(b)(1) because Driver pointed a knife at the victim
before, during, and after the aggravated sexual assault, and that
conduct constituted a threat of death or serious bodily injury as
described in 18 U.S.C. § 2241(a)(2). The officer also recommended
a four-level enhancement pursuant to § 2A3.1(b)(5) because Driver
abducted the victim by forcing her back to the passenger side of
the car after she attempted to escape by driving away. With the
enhancements, Driver’s total offense level was 38. Based upon that
offense level and Driver’s criminal history category of IV, the
guidelines range for his sentence was 324 to 405 months’
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imprisonment. The probation officer did not recommend any
departure or variance from the guidelines range.
Driver objected to the enhancements, arguing that they
were based upon facts that were not admitted by him, submitted to
the jury, or found by the jury beyond a reasonable doubt, in
violation of his rights under the Sixth Amendment of the United
States Constitution. The Government responded to Driver’s
objections, arguing that enhancements based upon facts not
submitted to a jury and proven beyond a reasonable doubt do not
violate the Sixth Amendment under the advisory guidelines
sentencing scheme adopted by the Supreme Court in United States v.
Booker, 543 U.S. 220 (2005). At Driver’s sentencing hearing, the
district court adopted the findings in the PSR, finding that the
Government’s response to Driver’s objections was correct. The
court stated, “I don’t see anything in here, either briefed or
otherwise, that invokes [18 U.S.C.A. §] 3553(a) and the factors
there, and I don’t see anything in those factors that’s not already
considered in the Guidelines.” Driver argued through counsel that
his age and family responsibilities entitled him to a more lenient
sentence, but the district court found that the evidence and
arguments presented did not justify a sentence below the guidelines
range. The court sentenced Driver to 324 months’ imprisonment, at
the low end of the guidelines range. Driver noted a timely appeal.
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We review a sentence to determine whether it is
reasonable, applying an abuse of discretion standard. Gall v.
United States, 128 S. Ct. 586, 596 (2007). If the sentence is
within the guidelines range, we may presume that it is reasonable.
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). A
district court must explain the sentence it imposes sufficiently
for this court to effectively review its reasonableness, but need
not mechanically discuss all the factors listed in § 3553(a).
United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006).
The court’s explanation should indicate that it considered the
§ 3553(a) factors and the arguments raised by the parties. Id. We
do not evaluate the adequacy of the district court’s explanation
“in a vacuum,” but also consider “[t]he context surrounding a
district court’s explanation.” Id. at 381.
Driver was sentenced at the low end of the guidelines
range for his offense, and, therefore, we may presume that his
sentence is reasonable. Although the district court did not
discuss individual § 3553(a) factors at sentencing, the court
indicated that it considered the guidelines advisory, heard
argument regarding the § 3553(a) factors, and found that the facts
and arguments presented did not justify a sentence below the
guidelines range. We conclude that the district court adequately
considered the § 3553(a) factors in stating its reasons for
Driver’s sentence.
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After the Supreme Court’s decision in Booker, a district
court is no longer bound by the range prescribed by the sentencing
guidelines. United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). Under an advisory guidelines scheme, a district court does
not violate the Sixth Amendment by making factual findings as to
sentencing factors by a preponderance of the evidence as long as
the fact-finding does not enhance the sentence beyond the maximum
term specified in the substantive statute. See United States v.
Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding that “Booker does
not in the end move any decision from judge to jury, or change the
burden of persuasion”).
In this case, the district court enhanced Driver’s
guidelines sentence based upon facts that were not found by a jury
beyond a reasonable doubt, but that were found by the district
court judge by a preponderance of the evidence. Because the court
treated the guidelines as advisory pursuant to Booker, the
enhancement did not violate Driver’s Sixth Amendment rights.
We affirm Driver’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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