US v. Barry Kirkpatrick

Filing 920080701

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4194 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BARRY LEWIS KIRKPATRICK, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00126-JAB-1) Submitted: June 26, 2008 Decided: July 1, 2008 Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Robert Albert Jamison Lang, Assistant United States Attorney, Winston-Salem, North Carolina; Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Barry Kirkpatrick pled guilty, pursuant to a written plea agreement, to robbery affecting interstate commerce, 18 U.S.C. 1951 (2000) ("Hobbs Act"), and was sentenced to 174 months imprisonment. Kirkpatrick timely appealed. His attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), identifying no meritorious grounds for appeal but questioning whether the sentence imposed was reasonable. informed of his right to file a supplemental pro Although se brief, Kirkpatrick has not done so. This court reviews the sentence imposed by the district court for reasonableness, applying an abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). sentencing a defendant, a district court must: calculate the guideline range; (2) treat the When (1) properly guidelines as advisory; (3) consider the factors set out in 18 U.S.C.A. 3553(a) (West 2000 & Supp. 2008); and (4) explain its reasons for selecting a sentence. must Pauley, 511 F.3d at 473. the various 3553(a) While the district court factors and explain its consider sentence, it need not explicitly reference 3553 or discuss every factor on the record. (4th Cir. 2006). United States v. Johnson, 445 F.3d 339, 345 Further, this court considers that "[a] sentence within the proper Sentencing Guidelines range is presumptively - 2 - reasonable." United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of rebuttable presumption of correctness of within-guideline sentence). Here, the district court followed the appropriate procedures in sentencing Kirkpatrick, and we find no abuse of discretion in its sentence of 174 months of imprisonment. therefore find that Kirkpatrick's sentence is reasonable. We In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. affirm the district court's judgment. We therefore 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 in this court for leave to withdraw from representation. Counsel's motion We must state that a copy thereof was served on the client. 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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