United States v. Haring , 280 F. App'x 301 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4734
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD HARING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:07-cr-00061-JCC)
Submitted: January 31, 2008 Decided: June 4, 2008
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt,
Research and Writing Attorney, Alexandria, Virginia, for Appellant.
Chuck Rosenberg, United States Attorney, Morton J. Posner, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Haring appeals from his sentence of concurrent
fifteen-month prison terms imposed by the district court following
Haring’s guilty plea to two counts of making a false statement to
a federally licensed firearms dealer, in violation of 18 U.S.C.
§ 922(a)(6) (2000). On appeal, Haring challenges the district
court’s denial of a reduction in his sentence under U.S. Sentencing
Guidelines Manual (“USSG”) § 2K2.1(b)(2) (2000), and claims that
his criminal history was overstated, resulting in a sentence
greater than necessary to meet the purposes of sentencing. We
affirm.
Section 2K2.1(b)(2) of the Guidelines provides for a
reduction in sentence when the firearms in question are possessed
by a disqualified person “solely for lawful sporting purposes or
collection.” Haring bears the burden of proving by a preponderance
of the evidence that he is entitled to a specified sentencing
reduction, and we review the court’s determination for clear error.
United States v. Abdi, 342 F.3d 313, 317 (4th Cir. 2003). We
conclude that the district court did not err in denying a
§ 2K2.1(b)(2) reduction in sentence.
Haring also argues that his sentence was unreasonable
because his guideline range overstated his criminal history and was
otherwise greater than necessary to meet the purposes of
sentencing. Under USSG § 4A1.3(b)(1), a sentencing court has the
discretion to impose a sentence departing downward from the
criminal history category if “reliable information indicates that
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the defendant’s criminal history category substantially over-
represents the seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit other crimes.” The
decision not to grant a downward departure is not reviewable unless
the court was under the mistaken impression that it lacked the
authority to depart. United States v. Matthews, 209 F.3d 338, 352-
53 (4th Cir. 2000); see also United States v. Cooper, 437 F.3d 324,
333 (3d Cir. 2006) (collecting cases declining to review district
court’s decision not to depart, even after United States v. Booker,
543 U.S. 220 (2005)). Thus, absent an unconstitutional motive or
a mistaken view that it lacked the authority to depart, neither of
which was present here, a court retains unfettered discretion to
determine whether to depart. United States v. Bayerle, 898 F.2d
28, 30-31 (4th Cir. 1990).
Haring’s argument that his sentence was unreasonable
because it was greater than necessary to meet the purposes of
sentencing also fails. This court reviews the sentence imposed by
the district court for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 597
(2007). When sentencing a defendant, a district court must: (1)
properly calculate the guideline range; (2) determine whether a
sentence within that range serves the factors set out in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007); (3) implement
mandatory statutory limitations; and (4) explain its reasons for
selecting a sentence. United States v. Green, 436 F.3d 449, 455-56
(4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). In the Fourth
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Circuit, a sentence within a correctly calculated advisory
guideline range is presumptively reasonable. United States v.
Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006); see also Rita v. United States, 127 S. Ct. 2456, 2462-
69 (2007) (upholding presumption of reasonableness for within-
guidelines sentence). This presumption can only be rebutted by
showing 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), cert. denied, 127 S. Ct. 3044 (2007). Guided
by these standards, we find that Haring’s sentence was reasonable.
For the foregoing reasons, 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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