United States v. Malone

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4315
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY G. MALONE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:06-cr-00230-F)
Submitted: January 9, 2008 Decided: February 13, 2008
Before KING and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Gene Malone appeals the sentence of ninety-seven
months imposed pursuant to his guilty plea to attempted armed bank
robbery, 18 U.S.C. § 2113(a) (2000), and carrying a firearm during
a crime of violence, 18 U.S.C. § 924(c)(1)(A) (2000). We affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court must calculate the appropriate guideline range,
consider that range in conjunction with the factors set forth at 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), and impose sentence.
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). We
review a post-Booker sentence to determine whether it is “within
the statutorily prescribed range” and reasonable. Id. at 547.
“[A] sentence within the proper advisory guidelines range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006); see Rita v. United States, 127 S. Ct. 2456(2007). When conducting a reasonableness inquiry, we review “legal
questions, including the interpretation of the guidelines, de novo,
while factual findings are reviewed for clear error.” United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006).
Malone first contends that his offense level should not
have been enhanced by two levels because of his leadership role in
the offense. See U.S. Sentencing Guidelines Manual § 3B1.1(c)
(2006). The evidence, however, establishes that Malone was the
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principal planner of the robbery. He recruited Joseph McKay to
assist in the crime. Additionally, it was Malone who selected the
bank that was to be robbed, carried a gun, and supplied the masks
and gloves that he and McKay wore during the attempted robbery. We
conclude that the district court did not clearly err in finding
that Malone played a leadership role in the offense.
Malone also argues that the district court erred when it
refused to depart downward from the advisory guideline range and
failed to impose a variance sentence. First, the district court’s
decision not to depart is not reviewable on appeal because the
court did not fail to recognize its authority to depart. See
United States v. Cooper, 437 F.3d 324, 333 (3d Cir. 2006); United
States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004). Second, the
district court properly rejected Malone’s request for a variance
sentence, observing that this was not an unusual case. We note
that the sentence imposed was at the low end of the properly
calculated advisory guideline range, was within the statutory
limits, and was imposed after consideration of the sentencing
factors identified at 18 U.S.C.A. § 3553(a). Malone’s age,
employment record, and the allegedly aberrant nature of the offense
are insufficient to overcome the presumption that the sentence
within the advisory guideline range is reasonable. See United
States v. Montes-Pineda, 445 F.3d 275, 279 (4th Cir. 2006), cert.
denied, 127 S. Ct. 3044 (2007).
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We conclude that the arguments raised on appeal are
without merit and that Malone’s sentence is reasonable. We
accordingly 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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