US v. Arthur Hairston, Sr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion dispositions in opinion--denying Motion to appoint/assign counsel [998055266-3]; denying Motion to clarify [998062662-2]; denying Motion to order the Warden to provide writing materials [998555511-2]. Originating case number: 3:00-cr-00024-JPB-1. Copies to all parties and the district court/agency. [998562824] Mailed to: Arthur Lee Hairston, Sr.. [09-6350]

Case: 09-6350

Document: 31

Date Filed: 04/07/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-6350

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTHUR LEE HAIRSTON, SR.,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:00-cr-00024-JPB-1)

Submitted:

March 17, 2011

Decided:

April 7, 2011

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

Affirmed by unpublished per curiam opinion.

Arthur Lee Hairston, Sr., Appellant Pro Se. Paul Thomas
Camilletti, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 09-6350

Document: 31

Date Filed: 04/07/2011

Page: 2

PER CURIAM:
Arthur Lee Hairston, Sr., appeals from the district
court’s

order

granting

in

part

his

motion for reduction of sentence.

18

U.S.C.

§ 3582

(2006)

On appeal, Hairston asserts

that the district court abused its discretion by failing to give
him

a

full

resentencing

hearing

and

that

the

district

court

failed to provide sufficient reasoning for the chosen sentence.
We affirm.
Hairston’s

claim

that

he

was

entitled

to

a

full

resentencing pursuant to United States v. Booker, 543 U.S. 220
(2005),

is

foreclosed

by

our

decision

in

United

States

v.

Dunphy, 551 F.3d 247, 251 (4th Cir.) (holding that “proceedings
under § 3582(c)(2) do not constitute a full resentencing of the
defendant”),

cert.

denied,

129

S.

Ct.

2401

(2009),

and

the

Supreme Court’s decision in Dillon v. United States, 130 S. Ct.
2683, 2693 (2010) (finding that holding in Booker does not apply
to

§

3582(c)(2)

proceedings).

Accordingly,

this

claim

is

without merit.
Hairston next asserts that the district court did not
fully consider his circumstances prior to choosing a sentence.
Under § 3582(c)(2), a district court “may reduce the term of
imprisonment, after considering the factors set forth in section
§ 3553(a) to the extent that they are applicable.”

In United

States v. Legree, 205 F.3d 724, 728-29 (4th Cir. 2000), we held
2

Case: 09-6350

Document: 31

Date Filed: 04/07/2011

Page: 3

that there exists a presumption, absent a contrary indication in
the record, that the district court considered the § 3553(a)
factors in denying a § 3582(c)(2) motion.

Here, the record

provides no support for Hairston’s assertions that the district
court failed to properly consider his motion; accordingly, we
presume

that

the

court’s

factors was sufficient.
F.3d

667,

674

(5th

consideration

of

the

appropriate

See also United States v. Evans, 587

Cir.

2009)

(holding

that

court

is

not

required to state findings of fact and conclusions of law when
denying § 3582 motion), cert. denied, 130 S. Ct. 3462 (2010).
Based on the foregoing, we affirm the district court’s
judgment.

We deny Hairston’s motions to appoint counsel, to

clarify, and to order the Warden to provide writing materials.
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 the decisional process.

AFFIRMED

3