United States v. Ricks , 238 F. App'x 946 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4526
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN RAY RICKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:03-cr-00086-LHT)
Submitted: May 23, 2007 Decided: July 12, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, Asheville, 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Unpublished opinions are not binding precedent in this circuit.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:
Steven Ray Ricks appeals the sentence imposed following
remand for resentencing. In our prior decision, we affirmed
Ricks’s convictions of two counts of aggravated sexual abuse of a
minor in violation of 18 U.S.C.A. §§ 1152, 2241(c) (West 2000 &
Supp. 2007), but vacated Ricks’s sentence and remanded for
resentencing pursuant to United States v. Booker, 543 U.S. 220(2005). United States v. Ricks, 166 F. App’x 37 (4th Cir. 2006).
On remand, the district court utilized the same
Guidelines* calculations that were applied at Ricks’s initial
sentencing — a total offense level of thirty-five, criminal history
category I, and a sentencing range of 168 to 210 months. At the
resentencing hearing, Ricks continued his objection to the two-
level enhancement imposed pursuant to USSG § 2A3.1(b)(3)(A) based
on his role as the victim’s caregiver. The district court
overruled Ricks’s objection and sentenced Ricks to 180 months’
imprisonment. Ricks timely appealed. We affirm.
On appeal, Ricks asserts that the district court violated
his Sixth Amendment rights in imposing the two-level enhancement
because the facts supporting it were neither alleged in the
indictment nor found by the jury. Ricks does not challenge the
accuracy of the district court’s factual findings and resultant
Guidelines determinations. In our earlier consideration of his
*
U.S. Sentencing Guidelines Manual (2003).
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sentence, we specifically rejected Ricks’s assertion that the facts
supporting this enhancement must be alleged in the indictment.
Ricks, 166 F. App’x at 39 n.*.
After 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). However, in imposing a
sentence post-Booker, courts still must calculate the applicable
Guidelines range after making the appropriate findings of fact and
consider the range in conjunction with other relevant factors under
the Guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). This court will affirm a post-
Booker sentence if it “is within the statutorily prescribed range
and is reasonable.” Id. at 433 (internal quotation marks and
citation omitted). “[A] sentence within the proper advisory
Guidelines range is presumptively reasonable.” United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
The district court explicitly treated the Guidelines as
advisory, and sentenced Ricks only after considering the Sentencing
Guidelines, the § 3553(a) factors, and counsel’s arguments.
Although the district court did not recite facts to support each
§ 3553(a) factor, the court need not “robotically tick through
§ 3553(a)’s every subsection” or “explicitly discuss every
§ 3553(a) factor on the record.” Johnson, 445 F.3d at 345. Thus,
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the Sixth Amendment error that occurred at the first sentencing was
cured by Ricks’s resentencing under an advisory Guidelines scheme.
We also conclude that Ricks’s sentence is reasonable.
We therefore affirm Ricks’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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