United States v. Patterson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4121
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRYL PATTERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-99-165-10-V)
Submitted: August 23, 2006 Decided: September 13, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This appeal is before the court after our limited remand
for resentencing under United States v. Booker, 543 U.S. 220(2005). Darryl Patterson appeals the 262-month sentence imposed
after remand, on his conviction for conspiracy to possess with
intent to distribute cocaine base (crack), in violation of 21
U.S.C. §§ 841(a)(1), 846 (2000). Patterson argues that the
sentencing court erred in sentencing him under the Sentencing
Guidelines provision for murder, and also that the court erred by
not departing further from the guideline range so calculated. We
find that the district court properly applied the guidelines and
that the sentence imposed is reasonable. We therefore affirm the
sentence.
This court reviews the imposition of a sentence for
reasonableness. Booker, 543 U.S. at 260-61; United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). After Booker, courts
must calculate the appropriate guideline range, making any
appropriate factual findings. United States v. Davenport, 445 F.3d
366, 370 (4th Cir. 2006). The court then should consider the
resulting advisory guideline range in conjunction with the factors
under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and determine
an appropriate sentence. Davenport, 445 F.3d at 370. If the
sentence imposed is within the advisory guideline range, it will be
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presumed to be a reasonable sentence. United States v. Green, 436
F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Patterson contends that his sentence is unlawful because
the district court made findings that increased his sentence beyond
what it would be based only on facts found by the jury. While it
is true that the district court made such factual findings, this
does not result in an unlawful sentence, as long as the sentence
does not exceed the limits of the statute of conviction. Indeed,
after Booker, the sentencing court is authorized to make factual
findings in order to appropriately determine the defendant’s
advisory range under the guidelines. See Davenport, 445 F.3d at
370. These authorized factual findings would include a finding as
to whether “a victim was killed under circumstances that would
constitute murder under 18 U.S.C.A. § 1111 [West Supp. 2005],”
which would require application of the murder guideline provision,
USSG § 2A1.1 (First Degree Murder).1 See USSG § 2D1.1(d)(1).2
Patterson also asserts that the court erred in finding
that the murder cross-reference applies. He contends that the
jury’s verdict acquitting him of the firearm conspiracy charge
equates with the jury’s rejection of the evidence that he
participated in the home invasion that resulted in the victim’s
1
Section 1111 provides that “[e]very murder . . . perpetrated
. . . by robbery . . . is murder in the first degree.” 18 U.S.C.
§ 1111(a).
2
U.S. Sentencing Guidelines Manual § 2D1.1(d)(1) (2000).
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death. This is not necessarily the case. Moreover, even if the
jury did reject the evidence concerning Patterson’s participation
in the home invasion, we have previously held that a sentencing
court may enhance a defendant’s sentence based on its findings of
conduct by a preponderance of the evidence, even if the jury
acquitted the defendant of that conduct. See United States v.
Martinez, 136 F.3d 972, 979 (4th Cir. 1998). We conclude that the
district court did not clearly err in determining that “a victim
was killed under circumstances that would constitute murder under
18 U.S.C.A. § 1111,” and therefore properly applied the murder
guideline. See USSG § 2D1.1(d)(1).
Patterson next contends that the seven-level downward
departure that the district court applied is unreasonable under the
circumstances of the case where he was convicted of a drug-related
offense, but sentenced for murder, and he did not intend to kill,
nor did he pull the trigger. He argues that he should have been
granted a ten-level departure to level 33, because the offense
conduct was more like second degree murder than first degree
murder. However, the sentencing court limited its departure,
noting the “recklessness of the conduct” and the context in which
the offense occurred. The court also emphasized “the need to
afford adequate deterrence and to protect the public.” In light of
the advisory nature of the guidelines and its consideration of the
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factors in § 3553(a), the sentencing court found that a departure
to level 36 was appropriate.
Because the district court adequately explained the basis
for its sentencing decision and considered both Patterson’s
arguments and the § 3553(a) factors with respect to Patterson and
his conduct, we find that the resulting 262-month sentence is
reasonable. See United States v. Montes-Pineda, 445 F.3d 375, 380
(4th Cir.), petition for cert. filed, U.S.L.W. (U.S. July
21, 2006) (No. 06-5439); Green, 436 F.3d at 457.
Accordingly, we affirm Patterson’s 262-month sentence.
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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