US v. Warren E. Moore

Filing 920091007

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4654 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WARREN EDWIN MOORE, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. C. Weston Houck, Senior District Judge. (4:02-cr-01280-CWH) Submitted: September 10, 2009 Decided: October 7, 2009 Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. G. Wells Dickson, Jr., WELLS DICKSON, PA, Charleston, South Carolina, for Appellant. Rose Mary Sheppard Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Warren after remand. for the E. Moore court appeals held a from the sentence imposed upon district resentencing hearing The district court again imposed a 108-month sentence intentionally, and unlawfully distributing and knowingly, possessing with intent to distribute, a quantity of cocaine. * Counsel has filed 386 U.S. a brief 738 in accordance stating with Anders are v. no California, (1967), that there meritorious issues for appeal but raising the issue of whether Moore was properly resentenced based on a quantity of drugs not charged in the indictment or admitted by the defendant. Counsel also raises a general argument regarding the reasonableness of the sentence. Finding no error, we affirm. Moore's Sixth Amendment rights were not violated by the court's drug quantity finding because the district court enhanced Moore's Guidelines range based on facts found by it under a preponderance of the evidence standard. district court appropriately treated the resultant Because the Guidelines range as merely advisory, and since Moore's sentence was within the statutory maximum authorized by the jury's verdict, the This case was placed in abeyance for United States v. Antonio, 311 F. App'x 679 (4th Cir. 2009) (No. 07-4791). We have reviewed Antonio and find that it does not change the outcome of this appeal. * 2 district court fully complied with the Sixth Amendment. See United States v. Booker, 543 U.S. 220, 232-44 (2005) (holding that judge-found sentence enhancements mandatorily imposed under the Guidelines by that the result jury in a sentence or facts greater than by that the authorized verdict admitted defendant violate the Sixth Amendment's guarantee of the right to trial by jury); see also Rita v. United States, 551 U.S. 338, 352 (2007) (recognizing that the Court's "Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence"); United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) (recognizing only that "the Guidelines must be advisory, not that judges may find no facts"), cert. denied, 129 S. Ct. 950 (2009). Moore's Anders brief also makes a general reasonable sentence argument. After Booker, a sentencing court must engage First, it must calculate It must then allow the in a multi-step process at sentencing. the appropriate Guidelines range. parties to argue for "whatever sentence they deem appropriate," consider the Guidelines range in conjunction with the factors set forth in 18 U.S.C. 3553(a) (2006), and select and explain an appropriate sentence. 210, 259-60 (4th Cir. United States v. Abu Ali, 528 F.3d 2008) (internal quotation marks and citation omitted), cert. denied, 129 S. Ct. 1312 (2009). 3 Appellate discretion. review of a sentence is for abuse of Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate court must ensure that the district court committed no procedural error, such as improperly calculating the Guidelines range, considering the Guidelines to be mandatory, failing on to consider the 3553(a) or factors, to sentencing based clearly erroneous facts, failing adequately explain the chosen sentence. 597. The appellate court then Gall, 128 S. Ct. at considers the substantive reasonableness of the sentence, taking into account the totality of the circumstances, including any variance from the Guidelines range. Pauley, 511 F.3d at 473. This court presumes on appeal a sentence within the Guidelines range to be reasonable; it may not presume a sentence outside the range to be unreasonable. Id. In correctly imposing Moore's the sentence, the district and court calculated Guidelines range specifically considered both the advisory nature of the Guidelines and the 3553(a) factors. is both We therefore conclude that Moore's sentence and substantively its reasonable in and the the procedurally court did not district sentence. abuse discretion imposing 4 In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Moore's sentence. This court requires that counsel inform Moore, in writing, of the right to petition the Supreme Court of the United States for further review. If Moore 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 We motion must state that a copy thereof was served on Moore. 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 5

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