United States v. Byrd , 238 F. App'x 948 ( 2007 )

Vacated by Supreme Court, Janaury 14, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5162
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES EDWARD BYRD, III,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:01-cr-00178-1)
Submitted: June 25, 2007 Decided: July 13, 2007
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Don Willey, Jefferson, 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Unpublished opinions are not binding precedent in this circuit.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:
In a prior appeal, we affirmed James Edward Byrd, III’s
conviction for conspiracy to distribute and possess with intent to
distribute more than fifty grams of crack cocaine, in violation of
21 U.S.C. § 846 (2000), vacated his 360-month sentence in light of
United States v. Booker, 543 U.S. 220 (2005), and remanded for
resentencing. On remand, the district court concluded that our
decision in United States v. Collins, 415 F.3d 304, 311-15 (4th
Cir. 2005), dictated a statutory maximum sentence of 240 months of
imprisonment. In accordance with Booker, the district court
calculated an advisory sentencing guideline range that exceeded the
statutory maximum. Thus, the statutory maximum became the advisory
guideline range. See U.S. Sentencing Guidelines Manual § 5G1.1(a)
(2005). The district court resentenced Byrd to a 240-month
sentence. Byrd appeals, contending that the district court
violated his Sixth Amendment rights at sentencing. Finding no
reversible error, we affirm.
Byrd asserts on appeal that the presumption of
reasonableness this court affords sentences within a properly
calculated guideline range, see United States v. Green, 436 F.3d
449 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006), is
unconstitutional and amounts to a de facto mandatory guidelines
scheme. Byrd contends that the district court improperly relied on
facts not found by a jury beyond a reasonable doubt or admitted by
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him, in violation of his Sixth Amendment rights. Finally, Byrd
asserts that his sentence is unreasonable because the district
court placed undue weight on the advisory guideline range that was
calculated based upon conduct not admitted by him and the court did
not consider his post-conviction rehabilitative efforts.
After Booker, a district court is no longer bound by the
range prescribed by the sentencing guidelines. Cunningham v.
California, 127 S. Ct. 856, 875 (2007); 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 guideline
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).
Because Byrd was sentenced on remand under an advisory
guideline scheme, the district court did not violate the Sixth
Amendment by making factual findings as to drug quantity by a
preponderance of the evidence. United States v. Morris, 429 F.3d
65, 72 (4th Cir. 2005), cert. denied, 127 S. Ct. 121 (2006).
Moreover, although Byrd contends that the presumption of
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reasonableness this court affords a post-Booker sentence imposed
within a properly calculated guidelines range is unconstitutional,
the Supreme Court has recently rejected such a claim. Rita v.
United States, __ U.S. __, 2007 WL 1772146, at *6-*11 (U.S. June
21, 2007) (No. 06-5754) (upholding application of rebuttable
presumption of reasonableness of within guidelines sentence). To
the extent that Byrd alleges the district court failed to take into
account all of the § 3553(a) factors before imposing sentence, the
record belies his claim. Although the district court did not
discuss explicitly every § 3553(a) factor on the record, it was not
required to do so. United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006).
Our review of the record therefore leads us to conclude
that the district court appropriately treated the guidelines as
advisory. The court considered the advisory guideline range along
with the factors in § 3553(a), taking into account the arguments
from Byrd and his counsel about Byrd’s employment history before
his arrest and his successful completion of many programs during
his incarceration. The court ultimately imposed the statutory
maximum sentence. Nothing in the record demonstrates that Byrd has
rebutted the presumption of reasonableness.
Accordingly, we affirm Byrd’s sentence. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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