US v. William Parros

Filing 920080904

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4760

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM PARROS, Defendant - Appellant.

No. 07-4772

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OWEN ROBINSON, a/k/a Heavy, Defendant - Appellant.

Appeals from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, Chief District Judge. (1:98-cr-00259-BEL-14; 1:98-cr-00259-BEL-5)

Submitted:

June 30, 2008

Decided:

September 4, 2008

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gerald D. Glass, LAW OFFICES OF GERALD D. GLASS, Towson, Maryland; G. Godwin Oyewole, Washington, D.C., for Appellants. Rod J. Rosenstein, United States Attorney, Robert R. Harding, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: In these consolidated appeals, William Parros and Owen Robinson appeal the district court's sentences imposed after we remanded for resentencing consistent with the rules announced in United States v. Booker, 543 U.S. 220 (2005). See United States v.

Robinson, 460 F.3d 550 (4th Cir. 2006). At resentencing, the court sentenced Parros to twenty years' imprisonment and Robinson to two concurrent terms of thirty years' imprisonment, in each case the statutory maximum sentence and the Sentencing Guidelines' sentence. On appeal, the Appellants claim the district court committed plain error because it did not have the benefit of the Supreme Court's opinions in Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007). They also argue

the court treated the Guidelines as mandatory and used facts to increase their offense levels that were not found by a jury or admitted by the Appellants. We affirm.

Appellate courts review sentences imposed by district courts for reasonableness, applying an abuse of discretion

standard.

Gall, 128 S. Ct. at 597-98; United States v. Pauley, 511 When sentencing a defendant, a

F.3d 468, 473-74 (4th Cir. 2007). district court must:

(1) properly calculate the guideline range;

(2) determine whether a sentence within that range serves the factors set out in § 3553(a); (3) implement mandatory statutory limitations; and (4) explain its reasons for selecting a sentence.

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Pauley, 511 F.3d at 473. the initial benchmark."

The Guidelines is "the starting point and Gall, 128 S. Ct. at 596. Next, the court

should give the parties the opportunity to argue for whatever sentence they deem appropriate. The court is then instructed to

consider the § 3553(a) factors in light of the defendant's request to impose a specific sentence. sentence within the proper Id. In the Fourth Circuit, "[a] Guidelines range is

Sentencing

presumptively reasonable."

United States v. Allen, 491 F.3d 178,

193 (4th Cir. 2007); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of reasonableness for

within-guidelines sentence). This presumption can be rebutted only by showing that the sentence is unreasonable when measured against the § 3553(a) factors. United States v. Montes-Pineda, 445 F.3d The district court, however, must not

375, 379 (4th Cir. 2006).

presume that a sentence within the Guidelines is reasonable. Gall, 128 S. Ct. at 597. The court must instead "make an individualized Id.

assessment based on the facts presented."

Upon review, this court must first determine whether the district court committed any significant procedural error, Gall, 128 S. Ct. at 597, such as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any

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deviation from the Guidelines range." sentence is procedurally sound, we

Id.

If this court finds the next "consider the

must

substantive reasonableness of the sentence imposed under an abuseof-discretion standard. will, of course, take When conducting this review, the court into account the totality of the

circumstances, including the extent of any variance from the Guidelines range. the appellate If the sentence is within the Guidelines range, may, but is not required to, apply a

court

presumption of reasonableness."

Gall, 128 S. Ct. at 597.

We find the district court appropriately followed the post-Booker sentencing procedure. In each case, it properly We

determined the offense level and criminal history category. find no procedural error. substantively reasonable.

We further find the sentences were The court was aware of its authority to

go below the Guidelines based on the § 3553(a) sentencing factors. Accordingly, we affirm the sentences. oral argument because the facts and legal We dispense with contentions are

adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

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