United States v. Hayes , 204 F. App'x 332 ( 2006 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4756
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    FLOYD HAYES,
    Defendant - Appellant.
    No. 06-4757
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    FLOYD HAYES,
    Defendant - Appellant.
    No. 06-4758
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    FLOYD HAYES,
    Defendant - Appellant.
    No. 06-4759
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    FLOYD HAYES,
    Defendant - Appellant.
    Appeals from the United States District Court for the Middle
    District of North Carolina, at Durham.    James A. Beaty, Jr.,
    District Judge. (1:04-cr-00243-JAB; 1:04-cr-00244-JAB; 1:04-cr-
    00367-JAB; 1:05-cr-00192-JAB)
    Submitted:   November 8, 2006           Decided:   November 30, 2006
    Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Louis C. Allen, III, Federal Public Defender, Gregory Davis,
    Assistant Federal Public Defender, Greensboro, North Carolina, for
    Appellant. Anna Mills Wagoner, United States Attorney, Paul A.
    Weinman, Assistant United States Attorney, Winston-Salem, North
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    - 2 -
    PER CURIAM:
    In these consolidated appeals, Floyd Hayes pled guilty to
    several offenses arising from two North Carolina bank robberies.
    The district court sentenced Hayes under the advisory sentencing
    guidelines to 272 months’ imprisonment, or the low end of the
    guidelines.   Hayes claims that because we review sentences within
    the guidelines as presumptively reasonable, the guidelines are per
    se mandatory and our review is unconstitutional.      Hayes further
    claims his sentence is unreasonable.   Finding no error, we affirm.
    We review a post-United States v. Booker, 
    543 U.S. 220
    (2005), sentence “to determine whether the sentence is within the
    statutorily prescribed range and is reasonable.”    United States v.
    Moreland, 
    437 F.3d 424
    , 433 (4th Cir.), cert. denied, 
    126 S. Ct. 2054
     (2006) (internal quotation marks and citation omitted).       “[A]
    sentence   within   the   proper   advisory   Guidelines   range    is
    presumptively reasonable.” United States v. Johnson, 
    445 F.3d 339
    ,
    341 (4th Cir. 2006). “[A] defendant can only rebut the presumption
    by demonstrating that the sentence is unreasonable when measured
    against the § 3553(a) factors.”    United States v. Montes-Pineda,
    
    445 F.3d 375
    , 379 (4th Cir. 2006) (internal quotation marks and
    citation omitted), petition for cert. filed, __ U.S.L.W. __ (U.S.
    July 21, 2006) (No. 06-5439). While a district court must consider
    the various § 3553(a) factors and explain its sentence, it need not
    explicitly reference § 3553 or discuss every factor on the record.
    - 3 -
    Johnson, 
    445 F.3d at 345
    .           This is particularly the case when the
    court imposes a sentence within the applicable guideline range.
    
    Id.
           One       reason   a   sentence       within      an    advisory     range      is
    presumptively reasonable is that the most salient § 3553(a) factors
    are already incorporated into guideline determinations.                             Id. at
    342-43.         A    sentence    falling       outside    the      guidelines       is   not
    presumptively unreasonable.             However, if the sentence was based on
    an error in construing the guidelines or if the court provided an
    inadequate statement of reasons or improper factors, it will be
    found unreasonable. United States v. Green, 
    436 F.3d 449
    , 457 (4th
    Cir.), cert. denied, 
    126 S. Ct. 2309
     (2006).                       When a variance is
    justified       by    reasons    tied     to    §   3553(a),       it   will   be    found
    reasonable. When a variance from the guidelines is substantial, we
    will more carefully scrutinize the reasoning.                           The further the
    sentencing court diverges from the guidelines, the more compelling
    the reasons for the divergence must be.                  Moreland, 
    437 F.3d at 434
    .
    We find no merit to Hayes’ claim that our standard of
    review renders the sentencing guidelines per se mandatory.                                We
    further     find       Hayes     failed        to   rebut        the    presumption       of
    reasonableness.
    Accordingly, we affirm the convictions and sentence.                          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.
    - 4 -
    AFFIRMED
    - 5 -
    

Document Info

Docket Number: 06-4756, 06-4757, 06-4758, 06-4759

Citation Numbers: 204 F. App'x 332

Judges: Hamilton, Per Curiam, Traxler, Williams

Filed Date: 11/30/2006

Precedential Status: Non-Precedential

Modified Date: 8/7/2023