United States v. Holbrook , 242 F. App'x 29 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4918
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AGNES HOLBROOK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:01-cr-10023-jpj)
Submitted: May 23, 2007 Decided: June 18, 2007
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sol Z. Rosen, Washington, D.C., for Appellant. John L. Brownlee,
United States Attorney, Jennifer R. Bockhorst, Assistant United
States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Agnes Holbrook appeals the sentence imposed following
remand for resentencing. Initially, we affirmed Holbrook’s
convictions* and sentence. United States v. Holbrook, 368 F.3d 415(4th Cir. 2004). The Supreme Court subsequently vacated this
court’s judgment and remanded the case for further consideration in
light of United States v. Booker, 543 U.S. 220 (2005). Holbrook v.
United States, 545 U.S. 1125 (2005). We then vacated Holbrook’s
sentence and remanded for resentencing pursuant to Booker and
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). United
States v. Holbrook, 178 F. App’x 312 (4th Cir. 2006) (No. 02-4844),
cert. denied, 127 S. Ct. 745 (2006).
On remand, the district court utilized the same guideline
calculations that were applied at Holbrook’s initial sentencing--a
total offense level of thirty-five and criminal history category I,
resulting in a sentencing guideline range of 168 to 210 months’
imprisonment. The district court sentenced Holbrook to 210 months
in prison. Holbrook timely appealed. We affirm.
Holbrook argues that her sentence violates her Sixth
Amendment rights because it is based on facts not found by the jury
or admitted by her, and that the district court failed to comply
with this court’s mandate for resentencing. Contrary to Holbrook’s
assertion, our opinion did not prescribe the sentencing range to be
*
Holbrook was convicted of possession of a firearm by a person
convicted of a misdemeanor crime of domestic violence, in violation
of 18 U.S.C. § 922(g)(9) (2000), and making false statements to a
firearms dealer in connection with the purchase of a firearm, in
violation of 18 U.S.C. § 922(g)(6) (2000).
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used on remand. Our specific guidance to the district court was
stated as follows:
On remand, the district court should first determine the
appropriate sentencing range under the guidelines, making
all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this
sentencing range along with the other factors described
in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 200[7]), and
then impose a sentence.
Holbrook, 178 F. App’x at 314. The district court fully complied
with this mandate.
After Booker, a district court is no longer bound by the
range prescribed by the sentencing guidelines. Hughes, 401 F.3d at
546. However, in imposing a sentence post-Booker, courts still
must calculate the applicable guideline range after making the
appropriate findings of fact and must consider the range in
conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a). United States v. Moreland, 437 F.3d 424, 432
(4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). This court will
affirm a post-Booker sentence if it “is within the statutorily
prescribed range and is reasonable.” Id. at 433 (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).
The district court explicitly treated the guidelines as
advisory, and sentenced Holbrook only after considering the
sentencing guidelines and the § 3553(a) factors. Although the
district court did not recite facts to support each § 3553(a)
factor, the court need not “robotically tick through § 3553(a)’s
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every subsection” or “explicitly discuss every § 3553(a) factor on
the record.” Johnson, 445 F.3d at 345. Thus, the Sixth Amendment
error that occurred at the first sentencing was cured by Holbrook’s
resentencing under an advisory guideline scheme.
Holbrook next argues that the presumption of
reasonableness this court affords sentences within the properly
calculated guideline range, by virtue of its decision in United
States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006), is unconstitutional and amounts to a de facto
mandatory guideline scheme. However, “a panel of this court cannot
overrule, explicitly or implicitly, the precedent set by a prior
panel of this court. Only the Supreme Court or this court sitting
en banc can do that.” Scotts Co. v. United Indus. Corp., 315 F.3d
264, 271-72 n.2 (4th Cir. 2002) (internal quotation marks and
citation omitted).
For these reasons, we affirm Holbrook’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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