US v. Preston Roe

Filing 920091207

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5077

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PRESTON DARNELL ROE, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:07-cr-00392-HEH-1)

Submitted:

November 17, 2009

Decided:

December 7, 2009

Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

William J. Dinkin, DINKIN & PURNELL, P.L.L.C., Richmond, Virginia, for Appellant. Kevin Christopher Nunnally, Special Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Preston Roe appeals from the 120-month sentence

imposed by the district court upon his guilty plea to possession of a firearm after having been convicted of a felony, in

violation of 18 U.S.C. § 922(g)(1) (2006).

Roe's attorney has

filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he asserts that there are no meritorious issues for appeal but questions the reasonableness of Roe's

sentence.

Although advised of his right to file a supplemental For the reasons that follow,

pro se brief, Roe has not done so. we affirm.

Roe was indicted for murder in Virginia state court; the jury found him guilty of the lesser-included offense of

being an accessory after the fact.

Roe had testified that he

was present during the shooting but that he did not fire the weapon -- rather, he testified that he took the gun from the shooter and sold it. Roe was then charged in federal court with

possessing a gun after having been convicted of a felony; he pled guilty without a plea agreement. Roe's advisory guidelines

range was 100-120 months imprisonment, based on a total offense level of 27 and a criminal history category of IV. We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. In conducting this review,

38, ___, 128 S. Ct. 586, 597 (2007). 2

this

court

first error,"

examines including the

the

sentence to

for

"significant (or the

procedural improperly Guidelines

"failing

calculate treating the §

calculating) as mandatory,

Guidelines to

range,

failing

consider

3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. . . ." Gall, 128 S. Ct. at 597. The appellate court next "consider[s] the substantive reasonableness of the sentence imposed." Id. At this stage, we

take "into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Id. If

the sentence imposed is within the appropriate Guidelines range, we presume on appeal that the sentence is reasonable. Rita v.

United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2459, 2462 (2007). Roe argues that his sentence was procedurally

unreasonable because the district court failed to address "each factor set forth" in § 3553(a). not required to "robotically However, the district court is tick through § 3553(a)'s every

subsection." Cir. 2006).

United States v. Johnson, 445 F.3d 339, 345 (4th Nor is Roe's sentence substantively unreasonable

because the district court considered Roe's involvement in the underlying murder. 1304-05 (11th See United States v. Duncan, 400 F.3d 1297, 2005) (holding 3 that consideration of

Cir.

acquitted conduct does not violate the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury verdict). We conclude that Roe's sentence is procedurally and substantively reasonable. advisory Guidelines range, The court correctly calculated his considered the relevant § 3553(a)

factors, and explained its reasons for imposing the 120-month sentence. Cir. 2009) an of See United States v. Carter, 564 F.3d 325, 330 (4th (requiring that the district court on "place the on the

record facts

individualized the of case

assessment it").

based Roe

particular the

before

cannot his

overcome

presumption sentence.

reasonableness

accorded

within-guidelines

We therefore affirm.

This court requires that counsel

inform Roe, in writing, of the right to petition the Supreme Court of the United States for further review. that a petition be filed, but counsel If Roe requests that such a

believes

petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion We dispense

must state that a copy thereof was served on Roe.

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 4