UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4394
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES DAVID LOCKHART,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:05-cr-00239)
Submitted: December 29, 2006 Decided: January 26, 2007
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Norman Butler, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Thomas Cullen, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James David Lockhart pled guilty without a plea agreement
to one count of possession of a firearm by a felon in violation of
18 U.S.C. § 922(g)(1) (2000) and was sentenced to eighty-four
months in prison. On appeal, Lockhart contends the district court
erred in calculating his guidelines range because the range was
based only on information contained in his presentence
investigation report (“PSR”). According to Lockhart, because the
guidelines range was improperly calculated, his sentence exceeded
the maximum sentence authorized by his guilty plea in violation of
United States v. Booker, 543 U.S. 220 (2005). We affirm.
Lockhart’s claim that the enhancements to his offense
level may not be based upon information submitted in the PSR is
meritless. A district court may exercise discretion “to select a
specific sentence within a defined range,” and Lockhart “has no
right to a jury determination of the facts that the judge deems
relevant.” Booker, 543 U.S. at 233; see also United States v.
Green, 436 F.3d 449, 455 (4th Cir.) (holding that a district court
“must make factual findings as appropriate or necessary to carry
out its sentencing function”), cert. denied, 126 S. Ct. 2309
(2006). Accordingly, we find the district court’s calculation of
the guidelines range was appropriately based upon information
reported in Lockhart’s PSR.
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We also find the district court did not err when it
considered the guidelines range calculated in the PSR accurate.
While Lockhart is correct that his sentencing hearings for crimes
for which he was arrested on March 10 and May 7, 1999, were
consolidated, the sentences were for offenses that took place on
different occasions and that were separated by an intervening
arrest. Accordingly, the sentences are not “related” for
sentencing purposes. See U.S. Sentencing Guidelines Manual
§ 4A1.2, comment. (n.3). We therefore conclude the district court
properly assigned Lockhart to criminal history category V.
We also find the district court did not consider the
guidelines range mandatory. 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). 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 § 3553(a), and
impose a sentence. Green, 436 F.3d at 455-56. However, “a
district court need not explicitly discuss every [18 U.S.C.]
§ 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). A sentence imposed within
the properly calculated guidelines range is presumptively
reasonable. Green, 436 F.3d at 457.
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At sentencing, the district court clearly recognized that
the guidelines were advisory rather than mandatory. The court
further recognized its duty to fully consider the § 3553(a)
factors. After hearing argument from Lockhart’s counsel and the
Government regarding the guidelines range and § 3553(a) factors,
the district court concluded the guidelines range was reasonable
under the circumstances and considering the need to protect the
“public from further crimes of the defendant and to provide the
defendant with the opportunity for needed vocational training,”
sentenced Lockhart at the low end of the guidelines range. We
conclude Lockhart’s sentence is reasonable because a sentence
imposed “within the properly calculated Guidelines range . . . is
presumptively reasonable,” and there is no evidence to rebut the
presumption in this case. Green, 436 F.3d at 457.
We therefore affirm Lockhart’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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