United States v. Kirkpatrick

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4041
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY ALLEN KIRKPATRICK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:03-cr-00017)
Submitted: November 30, 2006 Decided: December 27, 2006
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Donald David Gast, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Allen Kirkpatrick was convicted by a jury of two
counts of abusive sexual contact with a child under the age of
twelve years in violation of 18 U.S.C. § 2244(a)(1), (c) (2000) and
sentenced to concurrent terms of seventy-one months in prison
followed by three years of supervised release. On appeal, we
granted the parties’ joint motion for resentencing in accordance
with United States v. Booker, 543 U.S. 220 (2005). On remand,
Kirkpatrick objected to his sentence enhancements under U.S.
Sentencing Guidelines Manual (“U.S.S.G.”) §§ 2A3.4(b)(3),
4B1.5(b)(1) (2003), because they were determined by the district
court by a preponderance of the evidence. The district court
overruled the objections and again sentenced Kirkpatrick to
seventy-one months in prison and three years of supervised release.
On appeal, Kirkpatrick’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting, in his
opinion, there are no meritorious grounds for appeal but raising
the issue of whether the district court erred in determining
Kirkpatrick’s advisory guideline range. Kirkpatrick was advised of
his right to file a pro se supplemental brief but has not done so.
We affirm.
We will affirm a sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540, 546-47 (4th
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Cir. 2005). A sentence may be unreasonable for both substantive
and procedural reasons. United States v. Moreland, 437 F.3d 424,
434 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). A sentence
within a properly calculated advisory guideline range is
presumptively reasonable. United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). This
presumption can only be rebutted by showing the sentence is
unreasonable when measured against the factors under 18 U.S.C. §
3553(a) (2000). United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006), pet. for cert. filed, __ U.S.L.W. __ (July 21,
2006) (No. 06-5439). In considering whether the sentence is
unreasonable, we review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Hampton, 441 F.3d 284, 287 (4th Cir. 2006).
We have reviewed the record and conclude Kirkpatrick’s
sentence is reasonable. The district court properly found his
advisory guideline range using facts found by a preponderance of
the evidence. See United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005). Both the two-level supervisory control enhancement
under U.S.S.G. § 2A3.4(b)(3) and the five-level increase for repeat
and dangerous sex offender against minors under U.S.S.G. §
4B1.5(b)(1) were properly applied in this case. Because
Kirkpatrick’s sentence was within a properly calculated guideline
range, it is presumptively reasonable. The district court
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considered the range, the factors under 18 U.S.C. § 3553(a) (2000),
and the parties’ potentially meritorious arguments and reasonably
concluded a sentence at the high end of the range was appropriate
in this case.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment. This
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client.
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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