United States v. Graves , 183 F. App'x 383 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4456
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SCOTTIE LEE GRAVES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-220)
Submitted: March 8, 2006 Decided: June 2, 2006
Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John J. Korzen, Kernersville, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Michael F. Joseph, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Scottie Lee Graves appeals the sentence of thirty-seven
months imposed upon his guilty plea to escape, in violation of 18
U.S.C. § 751(a) (2000). Graves argues on appeal that he was
erroneously sentenced as a career offender because escape is not a
crime of violence. Further, Graves maintains that, even if he was
properly treated as a career offender, the sentence is
unreasonable. We affirm.
First, with respect to Graves’ treatment as a career
offender, we have previously held that the crime of attempted
escape, in violation of § 751(a), constitutes a crime of violence
for career offender purposes. We observed that escape, “‘in the
abstract,’ involves conduct that presents a serious potential risk
of physical injury to another.” United States v. Dickerson, 77
F.3d 774, 776 (4th Cir. 1996). It is immaterial that Graves
escaped from a nonsecure facility. See United States v. Martin,
378 F.3d 578, 582 (6th Cir. 2004). Accordingly, we find that
Graves was properly treated as a career offender.
We also conclude that the sentence imposed was
reasonable. After United States v. Booker, 543 U.S. 220 (2005),
sentencing courts are no longer bound by the sentencing range
prescribed by the sentencing guidelines, which are now advisory.
In determining a sentence, courts must calculate and consider the
guideline range as well as the factors set forth in 18 U.S.C.A.
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§ 3553(a) (West 2000 & Supp. 2005). United States v. Hughes, 401
F.3d 540, 546 (4th Cir. 2005). We will affirm a post-Booker
sentence if it is both reasonable and within the statutorily
prescribed range. Id. at 546-47.
Here, the district court recognized that the guidelines
are now advisory and correctly calculated Graves’ guideline range
to be 37-46 months. The thirty-seven-month sentence imposed is
within that range and well within the statutory maximum of five
years. See 18 U.S.C. § 751(a). Furthermore, the court weighed
the relevant § 3553(a) factors in determining Graves’ sentence.
We accordingly affirm. We grant the motion to file a pro
se supplemental informal brief, but find the claims raised in that
brief to lack merit. We deny as moot the motion to request
appellate disposition and 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. The motion to file supplemental opinion is
denied.
AFFIRMED
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