United States v. Husband , 235 F. App'x 55 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5208
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY RICHARD HUSBAND,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:02-cr-00125)
Submitted: April 20, 2007 Decided: June 1, 2007
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marcia G. Shein, LAW OFFICES OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellant. Chuck Rosenberg, United States Attorney,
Michael C. Moore, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Richard Husband appeals the sentence imposed
following remand for resentencing. In our initial decision, we
affirmed Husband’s convictions and 696-month sentence for eight
counts of coercing or using a minor to engage in sexually explicit
conduct for the purpose of producing a videotape of that conduct,
which was then transported in interstate commerce. United
States v. Husband, No. 03-4630, 119 F. App’x 475 (4th Cir. 2005).
In compliance with the mandate of the Supreme Court that vacated
our decision, see Husband v. United States, 126 S. Ct. 322 (2005),
we affirmed Husband’s convictions, but vacated his sentence and
remanded for resentencing pursuant to United States v. Booker, 543
U.S. 220 (2005). United States v. Husband, No. 03-4630, 2006 WL
4468334 (4th Cir. June 1, 2006) (unpublished). On remand, the
district court sentenced Husband to thirty years of imprisonment,
followed by three years of supervised release. We now affirm
Husband’s sentence.
On appeal, Husband contends that the district court
imposed an unreasonable sentence and erred in departing upward from
the guidelines range. In imposing a sentence after Booker, the
district court must first correctly determine, after making
appropriate findings of fact, the applicable guidelines range.
United States v. Hernandez-Villanueva, 473 F.3d 118, 122 (4th Cir.
2007). “Next, the court must ‘determine whether a sentence within
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that range . . . serves the factors set forth in § 3553(a) and, if
not, select a sentence [within statutory limits] that does serve
those factors.’” Id. (quoting United States v. Green, 436 F.3d
449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006)). The
district court must then articulate the reasons for the sentence
imposed, particularly explaining any departure or variance from the
guidelines range. Id. “The explanation of a variance sentence
must be tied to the factors set forth in § 3553(a) and must be
accompanied by findings of fact as necessary.” Id. at 122-23.
We review the resulting sentence for reasonableness,
considering “the extent to which the sentence . . . comports with
the various, and sometimes competing, goals of § 3553(a).” United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006). A sentence is unreasonable if the “court
provides an inadequate statement of reasons or relies on improper
factors in imposing a sentence outside the properly calculated
advisory sentencing range . . . .” Hernandez-Villanueva, 473 F.3d
at 123. “The district court need not discuss each factor set forth
in § 3553(a) ‘in checklist fashion;’ ‘it is enough to calculate the
range accurately and explain why (if the sentence lies outside it)
this defendant deserves more or less.’” Moreland, 437 F.3d at 432(quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).
Based on our review of the record, we find that the
district court properly sentenced Husband after considering and
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examining the sentencing guidelines and the § 3553(a) factors, as
instructed by Booker. The district court recalculated the
sentencing guidelines based on the previous findings of this court
and then proceeded to thoroughly examine the § 3553(a) factors and
concluded that the factors supported an upward departure from the
guidelines range. We find that the resulting sentence was
reasonable.
We therefore affirm Husband’s 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.
AFFIRMED
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