US v. Randall E. Hillian

Filing 920080124

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4453 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RANDALL EUGENE HILLIAN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Senior District Judge. (1:04-cr-00041-WLO) Submitted: January 9, 2008 Decided: January 24, 2008 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Ames C. Chamberlin, THE LAW OFFICES OF AMES C. CHAMBERLIN, PLLC, Greensboro, North Carolina, for Appellant. Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Randall following this Eugene Hillian remand appeals his sentence See imposed United court's for resentencing. States v. Hillian, 210 F. App'x 251 (4th Cir. 2006) (unpublished). Finding no error, we affirm. On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious grounds for appeal, but questioning whether the sentence is reasonable. In his pro se supplemental brief, Hillian joins his Hillian counsel in arguing that the sentence is unreasonable. additionally contends that 18 U.S.C. 3553(a) (2000), as applied to him, is unconstitutional. responding brief. Initially, unreasonable. Hillian contends that his sentence is The Government elected not to file a However, the district court appropriately treated the Sentencing Guidelines as advisory, properly calculated and considered the advisory guideline range, and weighed the relevant 18 U.S.C. 3553(a) factors. See United States v. Hughes, 401 F.3d As Hillian's applicable advisory 540, 546-47 (4th Cir. 2005). guideline range of 120 to 150 months was greater than the statutory maximum of 120 months' imprisonment, see 18 U.S.C. 924(a)(2) (2000), the court properly determined that the statutory maximum was the advisory guideline sentence. See U.S. Sentencing Guidelines Manual 5G1.1(c)(1) (2003). Thus, Hillian's 120-month - 2 - sentence is presumptively reasonable. See United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); see also Rita v. United States, 127 S. Ct. 2456, 2462-65 (2007) (approving presumption of reasonableness accorded sentences within properly calculated guideline range). Hillian additionally contends that 3553(a), as applied to him, is unconstitutional. because the factors lead He argues that "[t]his must be so, to nothing more than a guideline sentence." advisory However, the mere fact that Hillian received the guideline sentence does not render 3553(a) unconstitutional. found the Rather, it reflects that the district court Commission's view of the appropriate Sentencing application of 3553(a) factors suitable. no basis in the record to conclude that Therefore, we discern the presumption of reasonableness has been overcome. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. Accordingly, we affirm Hillian's sentence. 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 this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof - 3 - 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 in the decisional process. AFFIRMED - 4 -

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