United States v. Hurte , 237 F. App'x 871 ( 2007 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4039
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    ROBERT HURTE, II,
    Defendant - Appellant.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Beckley.    Thomas E. Johnston,
    District Judge. (5:06-cr-00124)
    Submitted:   July 25, 2007                 Decided:   August 13, 2007
    Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
    Appellate Counsel, Edward H. Weis, Assistant Federal Public
    Defender, Charleston, West Virginia, for Appellant.    Charles T.
    Miller, United States Attorney, John L. File, Assistant United
    States Attorney, Beckley, West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Robert Hurte, II, appeals a 180-month sentence imposed
    upon him following his guilty plea to one count of distribution of
    cocaine, in violation of 
    21 U.S.C. §§ 841
    (a)(1) (2000), and one
    count of being a felon in possession of a firearm, in violation of
    
    18 U.S.C. §§ 922
    (g)(1), 924(a)(2) (2000).       On appeal, Hurte argues
    that the sentence is unreasonable because it is greater than
    necessary to reflect the seriousness of the crime, to promote
    respect for the law, to promote adequate deterrence and to provide
    just punishment.     Hurte further argues that his classification as
    a career offender overstates both the seriousness of his offenses
    and his criminal history.       After thoroughly reviewing the record,
    we affirm.
    After United States v. Booker, 
    543 U.S. 220
     (2005), a
    district court is no longer bound by the range prescribed by the
    sentencing guidelines. United States v. Hughes, 
    401 F.3d 540
    , 546-
    47   (4th   Cir.   2005).   A   court   must   initially   calculate   the
    appropriate    Guidelines   range,   making    any   appropriate   factual
    findings.    United States v. Davenport, 
    445 F.3d 366
    , 370 (4th Cir.
    2006).   The court then considers the resulting advisory Guidelines
    range in conjunction with the factors under 
    18 U.S.C. § 3553
    (a)
    (West 2000 & Supp. 2007), and determines an appropriate sentence.
    Davenport, 
    445 F.3d at 370
    .       This Court will affirm a post-Booker
    sentence if it is within the statutorily prescribed range and is
    - 2 -
    reasonable.       Hughes, 
    401 F.3d at 546-47
    .              A sentence within the
    proper     advisory   Guidelines    range       is   presumptively     reasonable.
    United States v. Green, 
    436 F.3d 449
    , 457 (4th Cir.), cert. denied,
    
    126 S. Ct. 2309
     (2006); see also Rita v. United States, 
    127 S. Ct. 2456
    , 2462 (2007)(“Court of Appeals may apply a presumption of
    reasonableness to a district court sentence that reflects a proper
    application of the Sentencing Guidelines.”).
    Hurte did not object to the applicable calculation of his
    advisory guideline range.       The offense level was based on conduct
    he pled guilty to, and did not involve judicial fact-finding.                    The
    district court’s sentence was within the guideline range and is
    thus presumptively reasonable.           Green, 
    436 F.3d at 457
    .
    Hurte has not overcome the presumption of reasonableness.
    One   of    Hurte’s    predicate    offenses         for   the   career    offender
    determination was an aggravated robbery.                   Hurte committed this
    offense     by    breaking   into   a    residence,        along    with   two   co-
    conspirators, while wearing a ski-mask and possessing a firearm.
    The three perpetrators ordered the victim to give them money at
    gunpoint.        The second offense, which occurred nine months before
    the aggravated robbery, involved Hurte’s purchase of two pounds of
    marijuana from an undercover police officer.                       The state court
    imposed a ten-year suspended sentence for the aggravated robbery
    offense and a five-year suspended sentence for the controlled
    substance offense, to run concurrently.               In spite of this lenient
    - 3 -
    treatment, Hurte committed the offenses in this case.   Under these
    circumstances, we find the sentence reasonable.
    Accordingly, we affirm the district court’s judgment. 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
    - 4 -
    

Document Info

Docket Number: 07-4039

Citation Numbers: 237 F. App'x 871

Judges: Motz, Niemeyer, Per Curiam, Wilkinson

Filed Date: 8/13/2007

Precedential Status: Non-Precedential

Modified Date: 8/7/2023