UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4306
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS MCLACHLAN,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (3:05-cr-00033-WCB)
Submitted: December 15, 2006 Decided: January 16, 2007
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert Ratliff, Mobile, Alabama, for Appellant. Rita R. Valdrini,
Acting United States Attorney, Paul T. Camilletti, Assistant United
States Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas McLachlan was found guilty by a jury of possessing
a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)
(2000), and was sentenced to ninety-six months of imprisonment.
(J.A. 78-79). On appeal, he raises four issues, whether: (1) the
district court erred by enhancing his sentence based on facts not
found by the jury or admitted by him in violation of United
States v. Booker, 543 U.S. 220 (2005); (2) his sentence was
unreasonable; (3) the district court erred by denying his motion
for acquittal; and (4) the district court erroneously denied his
“innocent possession” jury instruction. For the reasons that
follow, we affirm.
In addressing McLachlan’s first two issues, we note that
the district court sentenced him in light of Booker. We thus
review his sentence “for unreasonableness.” Id. at 261; United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). After
Booker, a sentencing court is no longer bound by the range
prescribed by the advisory Sentencing Guidelines. United States v.
Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126 S. Ct.
2309 (2006); Hughes, 401 F.3d at 546. In determining the sentence,
however, courts are still required to calculate and consider the
guideline range, as well as the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006). We will affirm a post-Booker
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sentence if it is within the statutorily prescribed range and is
reasonable. Hughes, 401 F.3d at 546-47.
Here, the district court properly calculated McLachlan’s
sentencing range under the advisory Sentencing Guidelines,
considered the § 3553(a) factors, and gave its reasons for
sentencing him within the range. Thus, the sentence is
presumptively reasonable. Green, 436 F.3d at 455-56; United
States v. Johnson, 445 F.3d 339, 341-44 (4th Cir. 2006).
We find no error in the district court’s decision to deny
McLachlan’s motion for acquittal. See United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005) (stating review standard), cert.
denied, 126 S. Ct. 1925 (2006). Where, as here, the motion was
based on a claim of insufficient evidence, the verdict of a jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). We find the jury’s verdict was
supported by substantial evidence.
Finally, we find no error in the district court’s
decision to deny McLachlan’s request for a jury instruction for
“innocent possession” of the firearm at issue. We have previously
rejected this instruction in § 922(g) cases. United States v.
Gilbert, 430 F.3d 215, 218-20 (4th Cir. 2005).
Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
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the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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