United States v. Patton , 173 F. App'x 307 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4588
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY EDWARD PATTON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-03-93)
Submitted: February 28, 2006 Decided: April 4, 2006
Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael A. Bragg, BRAGG LAW, PLC, Abingdon, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Rick A.
Mountcastle, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Larry Edward Patton, Jr. appeals his sentence to thirty-
seven months in prison, three years of supervised release, and
restitution following his guilty plea to one count of conspiracy to
transport stolen property and one count of transporting stolen
property in violation of 18 U.S.C. §§ 2, 371, 2314 (2000).1 Patton
contends the district court erred by treating the sentencing
guidelines as advisory and by enhancing his sentence based on
judicial fact-finding. We affirm.
Patton’s sentence was imposed after the issuance of
Blakely v. Washington, 542 U.S. 296 (2004), but before United
States v. Booker, 543 U.S. 220 (2005), issued. The probation
officer determined Patton’s base offense level under U.S.
Sentencing Guidelines Manual (“USSG”) § 2B1.1(a)(2) (2003) was six.
He applied a ten-level enhancement under USSG § 2B1.1(b)(1)(F),
based on a loss amount between $120,000 and $200,000; a two-level
enhancement under USSG § 3B1.1(c) for Patton’s role as an
organizer; and a three-level decrease under USSG § 3E1.1 for
acceptance of responsibility. He found Patton’s criminal history
category was IV, in part based on a determination that the instant
offenses began within two years after Patton’s release from custody
1
This appeal was previously in abeyance for United States v.
Blick, 408 F.3d 162 (4th Cir. 2005). However, as the Government
has not sought enforcement of Patton’s waiver of appellate rights
contained in his plea agreement, we decline to consider whether the
waiver is dispositive of this appeal.
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on a prior charge pursuant to USSG § 4A1.1(e). Accordingly,
Patton’s total offense level was fifteen and his guideline range
was thirty to thirty-seven months in prison. Patton did not object
to the original presentence report or otherwise challenge the
guideline calculations or findings of fact therein.2
After Blakely, Patton argued the district court was still
required to apply the sentencing guidelines but was prohibited from
making judicial findings of fact and enhancing his sentence above
his base offense level of six. The Government contended that
Blakely either did not apply to the federal sentencing guidelines
or that the guidelines should be applied as advisory. The district
court ruled that Blakely applied to the federal sentencing
guidelines and that it would not apply the guidelines as mandatory
but would consider them as advisory when sentencing Patton. After
hearing unrebutted evidence from the Government in support of the
presentence report, the court adopted its findings of fact and
guideline applications without change. Based on Patton’s extensive
criminal history and the seriousness of the offenses, the court
sentenced him to thirty-seven months in prison. Pursuant to the
2
The probation officer filed an addendum to the presentence
report showing greater losses than stated in the original report,
and Patton objected to the new restitution amounts. However, the
probation officer did not increase the loss amount for purposes of
determining Patton’s guideline range. He further did not apply a
two-level increase under USSG § 2B1.1(b)(2)(A) for an offense
involving more than ten victims based on stipulations in the
parties’ plea agreement.
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parties’ plea agreement, the court dismissed three additional
counts.
“Concluding that the mandatory application of the
Sentencing Guidelines is what offended the Sixth Amendment jury
right,” the Supreme Court in Booker observed that if they were
“‘read as merely advisory provisions that recommended, rather than
required, the selection of particular sentences in response to
differing sets of facts, their use would not implicate the Sixth
Amendment.’” United States v. Green, 436 F.3d 449, 454-55 (4th
Cir. 2006) (quoting Booker, 125 S. Ct. at 750). Because the
guidelines were binding, the Court “found no distinction of
constitutional significance between the guidelines and the state
sentencing scheme it evaluated and found wanting in Blakely.”
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).
To effectuate congressional intent, the Supreme Court
“excised the provisions of the Sentencing Reform Act that mandated
sentencing and appellate review in conformance with the guidelines,
thereby rendering the guidelines ‘effectively advisory.’” Id.(citations omitted). Although they are no longer mandatory, a
sentencing court must still “consult [the] Guidelines and take them
into account when sentencing.” Booker, 125 S. Ct. at 767. “[T]he
court must make factual findings, as appropriate or necessary to
carry out its sentencing function, and in every case give the
reasons for the sentence imposed.” Green, 436 F.3d at 455. “We
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will affirm the sentence imposed as long as it is within the
statutorily prescribed range, and is reasonable.” Hughes, 401 F.3d
at 546-47 (citations omitted). A sentence imposed within the
properly calculated guidelines range is presumptively reasonable.
Green, 436 F.3d at 457.
On appeal, Patton does not contend that the district
court erred in its guideline calculations, only that the court’s
factual findings violated his Sixth Amendment rights. We disagree.
Because the district court properly treated the guidelines as
advisory only, there was no Sixth Amendment error. Moreover, it is
undisputed that the sentence imposed was within both the
statutorily prescribed and properly calculated guidelines ranges.
We conclude the sentence was reasonable.
Accordingly, we affirm. 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
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