United States v. Sutton , 208 F. App'x 195 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5050
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL DERILL SUTTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-05-27)
Submitted: September 27, 2006 Decided: December 1, 2006
Before WILLIAMS, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Derill Sutton pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of 120 months imprisonment. The 120-month term
was both the statutory maximum and the bottom of the advisory
guideline range of 120-150 months. Sutton contends on appeal that
his sentence is unreasonable because he obtained no benefit from
his three-level adjustment for acceptance of responsibility. U.S.
Sentencing Guidelines Manual § 3E1.1 (2004). We affirm.
After the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), before imposing a sentence, a district
court must correctly determine the guideline range, determine
whether a sentence within the range serves the statutory purposes
set out in § 3553(a) and, if not, select a sentence within the
statutory maximum that serves those purposes. United States v.
Perez-Pena, 453 F.3d 236, 241 (4th Cir. 2006). A sentence imposed
within a correctly computed guideline range is presumptively
reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006). A sentence may be
unreasonable if (1) it was not “selected pursuant to a reasoned
process in accordance with law,” (2) gives excessive weight to a
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relevant factor, or (3) is not “fair and just . . . in light of the
relevant facts and law.” Id.*
Sutton does not dispute that the district court correctly
calculated his guideline range. He received the benefit of his
acceptance of responsibility to the extent contemplated under the
guidelines. Had the court begun the adjustment at 120 months,
Sutton would have been rewarded twice for acceptance of
responsibility, because the 120-150 range already included an
adjustment under § 3E1.1. The record here reveals that the
district court understood its authority to depart downward or
impose a variance sentence, but showed no desire to do so. Because
the court properly calculated and considered the advisory guideline
range and weighed the relevant § 3553(a) factors, we conclude that
the sentence was reasonable.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
*
The government argues that the plain error standard of review
applies because Sutton did not request a departure to reward him
for accepting responsibility. However, the only claim of error
Sutton makes on appeal is that the sentence was unreasonable.
Thus, the reasonableness standard applies. The government also
argues that the district court’s decision not to depart is not
reviewable. However, this court has held that a sentencing court’s
decision not to depart below the advisory guideline range is
reviewed for reasonableness. United States v. Montes-Pineda, 445
F.3d 375, 377-78 (4th Cir. 2006), petition for cert. filed, __
U.S.L.W. (U.S. July 21, 2006) (No. 06-5439).
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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