United States v. Griffin , 240 F. App'x 561 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4981
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICHOLAS SHAMAR GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:03-cr-00103-F)
Submitted: May 30, 2007 Decided: July 9, 2007
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C., Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer May-Parker, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas Shamar Griffin was convicted by a jury of
possession with intent to distribute more than 5 grams of crack
cocaine, possession of firearms in furtherance of a drug
trafficking crime, and possession of firearms by a convicted felon,
and was sentenced to a total term of 246 months imprisonment. See
21 U.S.C. § 841(a)(1), 18 U.S.C. §§ 924(c), 922(g)(1) (2000). We
affirmed Griffin’s conviction but vacated his sentence and remanded
for re-sentencing consistent with United States v. Booker, 543 U.S.
220 (2005). See United States v. Griffin, No. 04-4536 (Apr. 12,
2006) (unpublished).
On remand, the district court conducted a re-sentencing
hearing and determined that Griffin’s total offense level remained
at 32; with a criminal history category V, the resulting guideline
range remained at 188 to 235 months on count one, five years to
life on count two (consecutive), and 120 months on count three.
The district court imposed a 186-month sentence as to count one, a
consecutive 60-month sentence as to count two, and a concurrent
120-month sentence on count three, totaling 246 months.* He noted
a timely appeal.
*
The court departed slightly below the guidelines range, by
two months, to account for time served in state custody. See U.S.
Sentencing Guidelines Manual, §§ 5G1.3, comment. (n. 4), 5K2.23
(2003).
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Griffin argues on appeal that the sentence imposed by the
district court was unreasonable because the court did not
adequately consider the factors set forth in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2006), and because the court treated the
advisory guidelines as if they were mandatory. We disagree.
In a post-Booker sentencing, the district court must
calculate the appropriate guideline range, consider the range in
conjunction with other relevant factors under the guidelines and §
3553(a), and impose a sentence. United States v. Green, 436 F.3d
449, 455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). The
district court’s sentence is reviewed for reasonableness. United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). This court
has held that “a sentence within the proper advisory Guidelines
range is presumptively reasonable.” United States v. Johnson, 445
F.3d 339, 341 (4th Cir. 2006).
We find that, in resentencing Griffin, the district court
complied with the decisions in Booker and Hughes. The court heard
argument from both parties regarding an appropriate sentence. The
court stated that it had “calculated the imprisonment range
prescribed by the advisory sentencing guidelines. . . . and
considered that range as well as other relevant factors set forth
in the advisory sentencing guidelines and those set forth in
[§ 3553(a)]”. The court also stated that it had imposed a
“sentence at the bottom of the range because all aggravating
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factors have been taken into consideration in determining the
advisory guideline imprisonment range and because of the mandatory
consecutive sentence required in count two.” And, after hearing
argument regarding Griffin’s inability to pay the previously
imposed $12,200 fine, the court struck the fine from the judgment.
Contrary to Griffin’s argument, the district court explicitly
stated that it considered the guidelines as advisory. 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. We therefore conclude that
Griffin’s sentence is reasonable.
Accordingly, we affirm. 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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