United States v. Barrett , 203 F. App'x 462 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4133
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONNIE BARRETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CR-04-244)
Submitted: September 29, 2006 Decided: October 20, 2006
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This appeal is before the court after our limited remand
for resentencing under United States v. Booker, 543 U.S. 220(2005). Ronnie Barrett appeals the 120-month sentence imposed
following his conviction on two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924
(2000). He contends that imposition of a sentence greater than the
alternate sentence stated by the court during his original
sentencing hearing resulted in an unreasonable sentence. We find
that the district court properly applied the sentencing guidelines
and that the sentence imposed is reasonable. We therefore affirm
the sentence.
This court reviews the imposition of a sentence for
reasonableness. Booker, 543 U.S. at 260-61; United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). After Booker, courts
must calculate the appropriate guideline range, making any
appropriate factual findings. United States v. Davenport, 445 F.3d
366, 370 (4th Cir. 2006). The court then should consider the
resulting advisory guideline range in conjunction with the factors
under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and determine
an appropriate sentence. Davenport, 445 F.3d at 370. If the
sentence imposed is within the advisory guideline range, it will be
presumed to be a reasonable sentence. United States v. Green, 436
F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
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Barrett contends that his sentence is unreasonable
because the district court, relying on the same presentence report
and the same facts as were available during his original sentencing
proceeding, imposed on resentencing a sentence greater than the
alternate sentence expressed by the court as applicable should the
United States Supreme Court declare the sentencing guidelines
unconstitutional in their entirety. The Supreme Court did not
declare the guidelines wholly unconstitutional, but rather upheld
the guidelines except to the extent that they were mandatory. See
Booker, 543 U.S. at 233 (stating that the sentencing guidelines, if
merely made advisory, would not violate the Sixth Amendment).
On resentencing, the district court properly followed the
sentencing procedure outlined by this court in Hughes, 401 F.3d at
546-47. The court determined the applicable sentencing range under
the guidelines, and then determined whether a sentence within that
range was appropriate. Specifically, the court considered the fact
that Barrett fled from officers, turned and pointed a loaded
firearm at the officers, and, but for his slipping and falling, he
may have fired the weapon. When apprehended after again trying to
flee, Barrett was in possession of a second firearm. The district
court stated that the “seriousness of the offense jumps out to the
Court” and “but for just sheer fortune, an officer is not now
dead.” The court also noted Barrett’s 13-year criminal history and
his failure to reform his conduct when given the opportunity to do
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so as a youth. Additionally, the court found a need to protect the
public from Barrett’s continued criminal activity. Considering all
these things, as well as Barrett’s statements of his lack of family
support and his difficult childhood, the court found that a 120-
month sentence--the statutory maximum--was appropriate.
Because the district court adequately explained the basis
for its sentencing decision and considered both Barrett’s arguments
and the § 3553(a) factors with respect to Barrett and his conduct,
we find that the resulting 120-month sentence was reasonable. See
United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006),
petition for cert. filed, U.S.L.W. (U.S. July 21, 2006)
(No. 06-5439); Green, 436 F.3d at 457. Accordingly, we affirm
Barrett’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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