United States v. Gibson , 217 F. App'x 257 ( 2007 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4742
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    BRYAN LEE GIBSON,
    Defendant - Appellant.
    Appeal from the United States District        Court for the Middle
    District of North Carolina, at Durham.         James A. Beaty, Jr.,
    District Judge. (1:05-cr-00069-JAB)
    Submitted:   January 19, 2007           Decided:     February 15, 2007
    Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
    North Carolina, for Appellant. Anna Mills Wagoner, United States
    Attorney, Douglas Cannon, Assistant United States Attorney,
    Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Bryan Lee Gibson pled guilty to possession of child
    pornography in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West
    Supp.    2006),   and    received       a   sentence    of    forty-six    months
    imprisonment.     Gibson appeals the sentence, contending that this
    circuit’s     decision    to    review      sentences    within     a   correctly
    calculated guideline range as presumptively reasonable renders the
    guidelines mandatory and is consequently unconstitutional. He also
    maintains that his sentence is unreasonable.                 We affirm.*
    Following United States v. Booker, 
    543 U.S. 220
     (2005),
    we review a 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
    *
    We decline to hold this case in abeyance, as Gibson requests,
    pending a decision in United States v. Rita, 177 F. App’x 357 (4th
    Cir.) (unpublished), cert. granted, 
    127 S. Ct. 551
     (2006).
    - 2 -
    the various § 3553(a) factors and explain its sentence, it need not
    explicitly reference § 3553 or discuss every factor on the record.
    Johnson, 
    445 F.3d at 345
    .       This is particularly true when the
    sentence is within the applicable guideline range.          
    Id.
        In fact,
    one   reason   that   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 interpreting the guidelines or if the court provided an
    inadequate statement of reasons or relied on improper factors, the
    sentence will be unreasonable.        United States v. Green, 
    436 F.3d 449
    , 457 (4th Cir.), cert. denied, 
    126 S. Ct. 2309
     (2006).                  A
    variance justified by reasons tied to § 3553(a) generally will be
    reasonable. When a variance from the guidelines is substantial, we
    must scrutinize the reasoning more intensely.            The further the
    sentencing court diverges from the guideline range, the more
    compelling the reasons for the divergence must be.          Moreland, 
    437 F.3d at 434
    .
    In light of our precedents, we find no merit in Gibson’s
    claim that our standard of review renders the guidelines per se
    mandatory. We further conclude that Gibson has failed to rebut the
    presumption that his sentence is reasonable.
    - 3 -
    We therefore affirm the sentence imposed by the district
    court.   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
    - 4 -
    

Document Info

Docket Number: 06-4742

Citation Numbers: 217 F. App'x 257

Judges: Gregory, Motz, Per Curiam, Shedd

Filed Date: 2/15/2007

Precedential Status: Non-Precedential

Modified Date: 8/7/2023