United States v. Horne , 228 F. App'x 276 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4496
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERRICK JAMES HORNE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:04-cr-00213-1)
Submitted: April 18, 2007 Decided: May 21, 2007
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reggie E. McKnight, MCKNIGHT LAW FIRM, P.L.L.C., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kimlani Murray Ford, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick James Horne appeals his convictions and
concurrent 168-month prison sentences imposed following his guilty
plea to one count of possession with intent to distribute cocaine
base and aiding and abetting the same, in violation of 18 U.S.C.
§ 2 (2000), 21 U.S.C.A. § 841 (West 1999 & Supp. 2006), and one
count of possession with intent to distribute cocaine, in violation
of 21 U.S.C.A. § 841. Horne’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
acknowledging the absence of any meritorious issues for appeal,*
but questioning whether the district court erred in failing to
impose a sentence below the guideline range. Horne was advised of
his right to file a pro se supplemental brief, but did not file
one.
In sentencing a defendant after United States v. Booker,
543 U.S. 220 (2005), the district court must calculate the advisory
guideline range and then consider whether that range “serves the
factors set forth in [18 U.S.C.A.] § 3553(a) [West 2000 & Supp.
2006)] and, if not, select a sentence that does serves those
factors.” United States v. Green, 436 F.3d 449, 456 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006). This court reviews a post-
Booker sentence “to determine whether the sentence is within the
*
Although counsel notes that there is a waiver contained in
Horne’s plea agreement, the government does not seek to enforce the
waiver. Because the government has not relied on the waiver
provision to assert that appellate review is precluded, the waiver
does not bar Horne’s appeal. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005).
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statutorily prescribed range and is reasonable.” United States v.
Moreland, 437 F.3d 424, 433 (4th Cir.) (internal quotation marks
and citation omitted), cert. denied, 126 S. Ct. 2054 (2006). “[A]
sentence within the proper advisory Guidelines range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006) (citations omitted). “[A] defendant can only
rebut the presumption 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)
(internal quotation marks and citation omitted), petition for cert.
filed, U.S.L.W. ___ (U.S. July 21, 2006) (No. 06-5439).
Here, Horne’s concurrent 168-month prison sentences fall
within the statutorily prescribed range of ten years to life, see
21 U.S.C.A. § 841(b)(1)(A), and within the properly calculated
guideline range of 160 to 210 months’ imprisonment. In sentencing
Horne, the district court considered the advisory guidelines, the
§ 3553(a) sentencing factors, and the arguments of Horne’s counsel
for a sentence below the guideline range. Our review of the record
convinces us that Horne has failed to rebut the presumption of
reasonableness accorded to sentences within the properly calculated
guideline range.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Horne’s convictions and sentences. This court
requires that counsel inform Horne, in writing, of the right to
petition the Supreme Court of the United States for further review.
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If Horne 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 Horne. 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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