United States v. Sharpe , 241 F. App'x 131 ( 2007 )

Vacated by Supreme Court, January 7, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4743
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH WAYNE SHARPE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:05-cr-00292-JAB)
Submitted: June 27, 2007 Decided: July 13, 2007
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Kenneth Wayne Sharpe pled
guilty to one count of possession of child pornography which had
been transported in interstate and foreign commerce, in violation
of 18 U.S.C.A. § 2252A(a)(5)(B), (b)(2) (West 2000 & Supp. 2007).
Sharpe sought a sentence of house arrest because he has cancer.
The district court sentenced Sharpe to sixty-three months in
prison, the bottom of the advisory guideline range. Sharpe timely
appealed his sentence.
It is well established in this circuit that a sentence
imposed within a properly calculated guideline range is presumed to
be reasonable. See, e.g., United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir.), petition for cert. filed, ___ U.S.L.W. ___
(U.S. July 21, 2006) (No. 06-5439), United States v. Johnson, 445
F.3d 339, 341-42 (4th Cir. 2006); United States v. Moreland, 437
F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006);
United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006). Sharpe claims that this presumption of
reasonableness is unconstitutional because it renders the
guidelines mandatory by placing greater emphasis on the guidelines
than on other sentencing factors. This argument is foreclosed by
the Supreme Court’s decision in Rita v. United States, ___ U.S.L.W.
___, ___, 2007 WL 1772146, *3, *6 (U.S. June 21, 2007) (No. 06-
5754).
Sharpe also argues that his sentence was unreasonable
because it was greater than necessary to comply with the purpose of
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18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). In imposing a
sentence, a court must calculate the applicable guideline range
after making the appropriate findings of fact and must consider the
range in conjunction with other relevant factors under the
guidelines and 18 U.S.C.A. § 3553(a). Moreland, 437 F.3d at 433.
“The district court need not discuss each factor set forth in
§ 3553(a) ‘in checklist fashion;’ ‘it is enough to calculate the
range accurately and explain why (if the sentence lies outside it)
this defendant deserves more or less.’” Id. at 432 (quoting United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)); see also Rita,
___ U.S.L.W. at ___, 2007 WL 1772146, at *12-*13.
Here, the district court appropriately treated the
guidelines as advisory. Sharpe agreed that his advisory guideline
range was sixty-three to seventy-eight months’ imprisonment, but
asked for a sentence of house arrest. The court considered the
guideline range and the factors in § 3553(a) before imposing a
sixty-three month prison term, a sentence at the bottom of the
guideline range and below the statutory maximum ten-year prison
sentence under 18 U.S.C.A. § 2252(a)(5)(B). Despite Sharpe’s
contention that his cancer diagnosis warrants a lower sentence,
neither Sharpe nor the record suggests any information so
compelling as to rebut the presumption that a sentence within the
properly calculated guideline range is reasonable.
Accordingly, we affirm Sharpe’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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