United States v. Dawkins , 240 F. App'x 598 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5177
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RASHAWN LAMAR DAWKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:05-cr-00489-REP)
Submitted: June 22, 2007 Decided: July 13, 2007
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Grossman, CROWGEY & GROSSMAN, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Angela
Mastandrea-Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rashawn Lamar Dawkins was convicted after a jury trial of
possession with intent to distribute cocaine base. The district
court sentenced him to 293 months in prison. On appeal, he
challenges the denial of his motion to suppress and the
reasonableness of his sentence. We affirm.
Initially, we have reviewed the parties’ arguments
concerning the motion to suppress, and we find no reversible error.
Accordingly, we hold that exigent circumstances supported the
protective sweep for the reasons stated by the district court.
(See J.A. at 160-72).
Dawkins next contends that the district court erred in
failing to give him a variance sentence below the advisory
Guidelines range on the ground that the Guidelines range was
calculated on the basis of acquitted conduct. As Dawkins admits,
the district court was free to consider acquitted conduct to
determine the offense level under the Sentencing Guidelines, even
after United States v. Booker, 543 U.S. 220 (2005). See United
States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert. denied,
126 S. Ct. 432 (2005); United States v. Williams, 399 F.3d 450, 454
(2d Cir. 2005). With respect to the court’s decision not to impose
a variance sentence, we review a post-Booker sentence “to determine
whether the sentence is within the statutorily prescribed range and
is reasonable.” United States v. Moreland, 437 F.3d 424, 433 (4th
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Cir.), 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). “[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), petition for cert. filed, ___U.S.L.W.___ (U.S. July 21,
2006) (No. 06-5439).
Dawkins’ sentence at the top of the Guideline range was
presumptively reasonable. In addition, the district court stated
that it considered the 18 U.S.C.A. § 3553 (West 2000 & Supp. 2007)
factors. Moreover, the acquitted conduct considered by the
district court was amply supported by taped phone calls from
Dawkins. To ignore such incriminating evidence would neither
promote respect for the law nor provide just punishment as required
by § 3553. Thus, we conclude that Dawkins has failed to rebut the
presumption that his sentence was reasonable.
Accordingly, we affirm Dawkins’ conviction and 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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