US v. Preston Roe, No. 08-5077 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5077 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PRESTON DARNELL ROE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:07-cr-00392-HEH-1) Submitted: November 17, 2009 Decided: December 7, 2009 Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. William J. Dinkin, DINKIN & PURNELL, P.L.L.C., Richmond, Virginia, for Appellant. Kevin Christopher Nunnally, Special Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Preston Roe appeals from the 120-month sentence imposed by the district court upon his guilty plea to possession of a firearm after having been convicted violation of 18 U.S.C. § 922(g)(1) (2006). of a felony, in Roe s attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he asserts that there are no meritorious issues for sentence. appeal but questions the reasonableness of Roe s Although advised of his right to file a supplemental pro se brief, Roe has not done so. For the reasons that follow, we affirm. Roe was indicted for murder in Virginia state court; the jury found him guilty of the being an accessory after the fact. lesser-included offense of Roe had testified that he was present during the shooting but that he did not fire the weapon rather, he testified that he took the gun from the shooter and sold it. Roe was then charged in federal court with possessing a gun after having been convicted of a felony; he pled guilty without a plea agreement. Roe s advisory guidelines range was 100-120 months imprisonment, based on a total offense level of 27 and a criminal history category of IV. We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007). 2 In conducting this review, this court first procedural examines error, the including improperly calculating) Guidelines as the mandatory, sentence failing Guidelines failing to for to significant calculate range, consider (or treating the § the 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. . . . Gall, 128 S. Ct. at 597. The appellate court next consider[s] the substantive reasonableness of the sentence imposed. At this stage, we Id. take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. Id. If the sentence imposed is within the appropriate Guidelines range, we presume on appeal that the sentence is reasonable. Rita v. United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2459, 2462 (2007). Roe argues that his sentence was procedurally unreasonable because the district court failed to address each factor set forth in § 3553(a). not required to robotically However, the district court is tick through § 3553(a) s every subsection. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). Nor is Roe s sentence substantively unreasonable because the district court considered Roe s involvement in the underlying murder. 1304-05 (11th See United States v. Duncan, 400 F.3d 1297, Cir. 2005) (holding 3 that consideration of acquitted conduct does not violate the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury verdict). We conclude that Roe s sentence is procedurally and substantively reasonable. advisory Guidelines The court correctly calculated his range, considered the relevant § 3553(a) factors, and explained its reasons for imposing the 120-month sentence. Cir. See United States v. Carter, 564 F.3d 325, 330 (4th 2009) record facts an (requiring that individualized of the presumption of case the district assessment before it ). reasonableness court based Roe accorded on place the cannot his on the particular overcome the within-guidelines sentence. We therefore affirm. This court requires that counsel inform Roe, in writing, of the right to petition the Supreme Court of the United States for further review. that a petition be filed, but counsel If Roe requests believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Roe. 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

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