UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4756
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLOYD HAYES,
Defendant - Appellant.
No. 06-4757
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLOYD HAYES,
Defendant - Appellant.
No. 06-4758
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLOYD HAYES,
Defendant - Appellant.
No. 06-4759
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLOYD HAYES,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (1:04-cr-00243-JAB; 1:04-cr-00244-JAB; 1:04-cr-
00367-JAB; 1:05-cr-00192-JAB)
Submitted: November 8, 2006 Decided: November 30, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Paul A.
Weinman, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Floyd Hayes pled guilty to
several offenses arising from two North Carolina bank robberies.
The district court sentenced Hayes under the advisory sentencing
guidelines to 272 months’ imprisonment, or the low end of the
guidelines. Hayes claims that because we review sentences within
the guidelines as presumptively reasonable, the guidelines are per
se mandatory and our review is unconstitutional. Hayes further
claims his sentence is unreasonable. Finding no error, we affirm.
We review a post-United States v. Booker, 543 U.S. 220
(2005), 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) (internal quotation marks and citation omitted). “[A]
sentence within the proper advisory Guidelines range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006). “[A] defendant can only rebut the presumption
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) (internal quotation marks and
citation omitted), petition for cert. filed, __ U.S.L.W. __ (U.S.
July 21, 2006) (No. 06-5439). While a district court must consider
the various § 3553(a) factors and explain its sentence, it need not
explicitly reference § 3553 or discuss every factor on the record.
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Johnson, 445 F.3d at 345. This is particularly the case when the
court imposes a sentence within the applicable guideline range.
Id. One reason a sentence within an advisory range is
presumptively reasonable is that the most salient § 3553(a) factors
are already incorporated into guideline determinations. Id. at
342-43. A sentence falling outside the guidelines is not
presumptively unreasonable. However, if the sentence was based on
an error in construing the guidelines or if the court provided an
inadequate statement of reasons or improper factors, it will be
found unreasonable. United States v. Green, 436 F.3d 449, 457 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). When a variance is
justified by reasons tied to § 3553(a), it will be found
reasonable. When a variance from the guidelines is substantial, we
will more carefully scrutinize the reasoning. The further the
sentencing court diverges from the guidelines, the more compelling
the reasons for the divergence must be. Moreland, 437 F.3d at 434.
We find no merit to Hayes’ claim that our standard of
review renders the sentencing guidelines per se mandatory. We
further find Hayes failed to rebut the presumption of
reasonableness.
Accordingly, we affirm the convictions 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.
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AFFIRMED
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