United States v. Hinson , 235 F. App'x 119 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4182
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEO HINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, District Judge.
(4:02-cr-60025-1)
Submitted: July 25, 2007 Decided: August 3, 2007
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Craig P. Tiller, FREEMAN, DUNN, ALEXANDER & TILLER, P.C.,
Lynchburg, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Donald R. Wolthuis, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leo Hinson was convicted of: solicitation to commit
murder (Count 1), attempted murder of a government witness (Count
2), witness tampering by attempted murder (Count 3), retaliating
against government witness by attempted murder (Count 4),
conspiracy to murder government witness (Count 5), and possession
of a firearm by a convicted felon (Count 6). He was sentenced to
293 months of imprisonment, the top of his Sentencing Guidelines
range of 235-293 months.
On appeal, we affirmed Hinson’s convictions, but vacated
and remanded for resentencing in light of United States v. Booker,
543 U.S. 220 (2005). See United States v. Cardwell, 433 F.3d 378,
391-93 (4th Cir. 2005), cert. denied, 547 U.S. 1061 (2006). On
remand, the district court heard arguments regarding the factors
listed in 18 U.S.C.A. § 3553 (West 2000 & Supp. 2007), understood
that the Sentencing Guidelines were advisory only, determined that
the recommendations in the original presentence report (“PSR”) were
correct, and again sentenced Hinson to 293 months of imprisonment.
Hinson timely appeals, alleging that the district court
erroneously calculated his offense level at resentencing. We
review a district court’s factual findings at sentencing for clear
error and its legal conclusions, including its interpretation and
application of the Sentencing Guidelines, de novo. United
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States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). We find no
reversible error in the calculation of Hinson’s sentence.
We review a post-Booker 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). In a post-Booker
sentencing, a court must calculate the advisory Sentencing
Guidelines range and then consider whether that range serves the
factors set forth in § 3553(a) and, if not, select a sentence that
does serve those factors. United States v. Green, 436 F.3d 449,
456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). A sentence
within a properly-calculated advisory Sentencing Guidelines range
is presumptively reasonable. United States v. Johnson, 445 F.3d
339, 341-44 (4th Cir. 2006). A defendant can only rebut the
presumption of reasonableness 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),
petition for cert. filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No.
06-5439). We find the district court’s sentence was not
unreasonable and Hinson has failed to rebut the presumption of
correctness. The Supreme Court has recently held that such an
appellate presumption is permitted. Rita v. United States, 127 S.
Ct. 2456, 2462-67 (2007).
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Accordingly, we affirm Hinson’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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