United States v. Barrett , 184 F. App'x 334 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4975
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS DWAYNE BARRETT,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-05-41)
Submitted: April 26, 2006 Decided: June 7, 2006
Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Charles T.
Miller, Acting United States Attorney, Joshua C. Hanks, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Dennis Dwayne Barrett of being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2000). He was sentenced to forty-one months of
imprisonment. On appeal, he argues that the district court erred
in instructing the jury regarding the “in or affecting commerce”
element and that his sentence is unreasonable. We affirm.
This court reviews a district court’s decision to give a
jury instruction and the content of an instruction for abuse of
discretion. See United States v. Abbas, 74 F.3d 506, 513 (4th Cir.
1996). A district court abuses its discretion when it fails or
refuses to exercise its discretion or when its exercise of
discretion is flawed by an erroneous legal or factual premise.
James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). When jury
instructions are challenged on appeal, the issue is whether, taken
as a whole, the instructions fairly stated the controlling law.
United States v. Cobb, 905 F.2d 784, 788-89 (4th Cir. 1990).
Barrett concedes that this court has rejected his
argument that the Government must prove his possession of a firearm
explicitly affected or was connected with interstate commerce. He
argues, however, that the district court’s jury instruction
obviated the Government’s burden of proof on an essential element
of the offense and thereby violated due process by creating an
unconstitutional presumption. The court specifically instructed
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the jury that the Government was obligated to prove beyond a
reasonable doubt that the firearm traveled in interstate commerce.
Because the district court’s instruction that the “in or affecting
commerce” element could be proven by evidence that the firearm was
manufactured in another state is consistent with the controlling
law and the jury instruction did not obviate the Government’s
burden of proving the element, we find Barrett’s challenge to the
jury instruction without merit.
Barrett also argues that his forty-one-month sentence was
unreasonable because it is greater than necessary to reflect the
seriousness of the offense, to promote respect for the law, and to
provide just punishment. He specifically points to the fact that,
while his possession of the firearm was illegal, he did not
physically harm or threaten the public.
After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court is no longer bound by the range prescribed by the
sentencing guidelines. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005). In a post-Booker sentencing, district courts
must calculate the appropriate guideline range, consider the range
in conjunction with other relevant factors under the guidelines and
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a
sentence. United States v. Green, 436 F.3d 449, 455-56 (4th Cir.
2006) (citing Hughes, 401 F.3d at 546), cert. denied, __ U.S. __,
2006 WL 1057741 (U.S. May 22, 2006) (No. 05-10474). However, a
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“district court need not explicitly discuss every § 3553(a) factor
on the record.” United States v. Eura, 440 F.3d 625, 632 (4th Cir.
2006) (citation omitted). “[A] sentence imposed within the
properly calculated Guidelines range . . . is presumptively
reasonable.” Green, 436 F.3d at 457 (internal quotation marks and
citation omitted); see United States v. Johnson, 445 F.3d 339, 341-
44 (4th Cir. 2006)(discussing justifications for finding sentence
within properly calculated advisory guidelines range presumptively
reasonable).
Based on an offense level of twenty and a criminal
history category of III, Barrett’s guideline range was forty-one to
fifty-one months of imprisonment. Barrett’s forty-one-month
sentence was at the bottom of the guideline range and below the
statutory maximum of ten years of imprisonment for a § 922(g)(1)
violation. The district court clearly appreciated the guidelines
as advisory and stated that it had taken into consideration the
factors under 18 U.S.C.A. § 3553(a). The court noted that Barrett
had “compiled a significant criminal record,” but took into account
that he had adjusted well in North Carolina for the past two years.
The court concluded that, because of Barrett’s record, it was
appropriate to sentence him within the suggested guideline range.
Because the district court appropriately treated the guidelines as
advisory, properly calculated and considered the guideline range,
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and weighed the relevant § 3553(a) factors, we find that Barrett’s
sentence is reasonable.
Accordingly, we affirm Barrett’s conviction and 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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