UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4131
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS JUNIOR SHIELDS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-312)
Submitted: September 29, 2006 Decided: October 25, 2006
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Junior Shields appeals his resentencing following
this court’s remand. See United States v. Shields, 133 Fed. App’x
60 (4th Cir. 2005) (No. 04-4389). For the reasons stated below, we
affirm Shields’ 120-month sentence.
Following a jury trial, Shields was convicted of
possession of a firearm by a convicted felon, in violation of 18
U.S.C.A. §§ 922(g)(1), 924(e)(1) (West 2000 & Supp. 2006) (Count
One), but not guilty of possession of an unregistered shotgun, in
violation of 26 U.S.C. §§ 5861(d), 5871 (2000) (Count Two). The
court sentenced Shields under the mandatory federal sentencing
guidelines and applied two enhancements based on facts found by a
preponderance of the evidence. Specifically, the court increased
Shields’ base offense level by two under U.S. Sentencing Guidelines
Manual § 2K2.1(b)(4) (2003), based upon its finding that the
firearm had an obliterated serial number. Furthermore, the court
increased the offense level an additional four levels under USSG
§ 2K2.1(b)(5), based upon its finding that Shields used or
possessed the firearm in connection with another felony, namely
felonious first degree kidnaping. Neither the fact of the
obliterated serial number nor the commission of the felonious first
degree kidnaping was found by the jury beyond a reasonable doubt.
With these two enhancements, Shields’ offense level was
26. His criminal history category was VI, yielding a guideline
range of 120 to 150 months in prison. USSG ch. 5, pt. A
(sentencing table). Without the two enhancements, Shields’
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guideline range would have been seventy to eighty-seven months in
prison. Id. The district court sentenced Shields to 120 months in
prison. We affirmed Shields’ conviction but vacated his sentence
because the district court’s factual findings upon which it
increased Shields’ offense level and his sentence violated United
States v. Booker, 543 U.S. 220 (2005).
On remand, the district court determined that Shields’
criminal history category was V instead of VI. The court found
that Shields’ offense level was 26, rejecting Shields’ objections
to the two-level increase in offense level for the obliterated
serial number and the four-level increase in offense level for
using or possessing the firearm in connection with another felony.
With a criminal history category of V and offense level of 26,
Shields’ advisory guideline range was 110 to 137 months’
imprisonment. USSG ch. 5, pt. A (sentencing table). Pursuant to
USSG § 5G1.1(c)(1), however, the advisory guideline range became
110 to 120 months because Shields was subject to a ten-year
statutory maximum sentence under 18 U.S.C. § 924(a)(2) (2000).
Although Shields presented evidence that he had
cooperated with law enforcement and completed self-improvement
classes since his conviction, the district court nevertheless
sentenced Shields to 120 months’ imprisonment, the top of the
guideline range. The court held that a greater sentence than 120
months was appropriate to meet the objectives of 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006), in light of what Shields did to
the victim and because the court found that he brought in a witness
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to testify falsely. The court noted that 120 months was the
highest sentence it could impose under the statute. Shields
appeals, arguing that his 120-month sentence is unreasonable
because it is greater than necessary to achieve the objectives of
§ 3553(a) and that the record fails to show that the court gave
adequate consideration to the § 3553(a) factors.
After Booker, 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). The court
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), and impose a sentence. United States v.
Davenport, 445 F.3d 366, 370 (4th Cir. 2006). A sentence within a
properly calculated guideline range is presumptively reasonable.
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006), cert.
denied, 126 S. Ct. 2309 (2006). A defendant can only rebut that
presumption by demonstrating that the sentence is unreasonable when
measured against the factors in 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2006). 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). While a sentencing court must
explain the basis for its sentence, “a 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), petition for
cert. filed, U.S.L.W. (U.S. June 20, 2006) (No. 05-11659).
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“Rather, the record must reflect that the court adequately and
properly considered the § 3553(a) sentencing factors.” Id.
Shields’ 120-month sentence is within the properly
calculated advisory guideline range and within the statutory
maximum. In sentencing Shields, the district court adequately
explained the basis for its sentencing decision, taking into
consideration Shields’ arguments. We find Shields’ sentence to be
reasonable. Accordingly, we affirm the sentence imposed by the
district court. 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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