US v. McKinney

Filing 920071213

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4088 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JEAN ANDREW MCKINNEY, a/k/a Red, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Chief District Judge. (1:03-cr-00059-IMK) Submitted: June 29, 2007 Decided: December 13, 2007 Before MICHAEL, MOTZ, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. L. Richard Walker, Assistant Federal Public Defender, Clarksburg, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, Robert H. McWilliams, Jr., Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jean Andrew McKinney was convicted by a jury of making a threatening telephone call in violation of 18 U.S.C. 875(b) (2000) and was sentenced to fifty-seven months of incarceration. We affirmed his conviction on appeal but vacated and remanded his sentence in light of United States v. Booker, 543 U.S. 220 (2005). On remand, the district court again sentenced him to fifty-seven months of imprisonment, the bottom of his properly-calculated Sentencing Guidelines range of 57-71 months of imprisonment. On appeal, McKinney raises two issues, whether: (1) the district court's resentencing was erroneous in light of McKinney's age, health, and criminal history, and (2) a presumption of correctness for a sentence within the advisory sentencing range renders the federal Sentencing Guidelines mandatory. follow, we affirm. First, the record is uncontroverted that the district court took into consideration McKinney's age, health, criminal history, and other factors at his resentencing. The court also For the reasons that referred to the factors listed in 18 U.S.C.A. 3553(a) (West 2000 & Supp. 2007). The court again sentenced McKinney to fifty-seven Under these circumstances, we find the United States v. Moreland, 437 F.3d months of imprisonment. sentence to be reasonable. 424, 433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). - 2 - Second, properly-calculated reasonable. we have held that a sentence is within a advisory sentencing range presumptively United States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); United States v. Johnson, 445 F.3d 339, 341, 344 (4th Cir. 2006). has recently approved of the presumption. The Supreme Court See Rita v. United States, 127 S. Ct. 2456 (2007) (holding that an appellate court may apply a presumption of reasonableness to a district court's sentence that reflects a proper application of the Sentencing Guidelines). McKinney has failed to rebut the presumption of reasonableness by demonstrating 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). Accordingly, we affirm McKinney's 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 - 3 -

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