UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4742
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRYAN LEE GIBSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (1:05-cr-00069-JAB)
Submitted: January 19, 2007 Decided: February 15, 2007
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryan Lee Gibson pled guilty to possession of child
pornography in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West
Supp. 2006), and received a sentence of forty-six months
imprisonment. Gibson appeals the sentence, contending that this
circuit’s decision to review sentences within a correctly
calculated guideline range as presumptively reasonable renders the
guidelines mandatory and is consequently unconstitutional. He also
maintains that his sentence is unreasonable. We affirm.*
Following United States v. Booker, 543 U.S. 220 (2005),
we review a 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
*
We decline to hold this case in abeyance, as Gibson requests,
pending a decision in United States v. Rita, 177 F. App’x 357 (4th
Cir.) (unpublished), cert. granted, 127 S. Ct. 551 (2006).
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the various § 3553(a) factors and explain its sentence, it need not
explicitly reference § 3553 or discuss every factor on the record.
Johnson, 445 F.3d at 345. This is particularly true when the
sentence is within the applicable guideline range. Id. In fact,
one reason that 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 interpreting the guidelines or if the court provided an
inadequate statement of reasons or relied on improper factors, the
sentence will be unreasonable. United States v. Green, 436 F.3d
449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). A
variance justified by reasons tied to § 3553(a) generally will be
reasonable. When a variance from the guidelines is substantial, we
must scrutinize the reasoning more intensely. The further the
sentencing court diverges from the guideline range, the more
compelling the reasons for the divergence must be. Moreland, 437
F.3d at 434.
In light of our precedents, we find no merit in Gibson’s
claim that our standard of review renders the guidelines per se
mandatory. We further conclude that Gibson has failed to rebut the
presumption that his sentence is reasonable.
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We therefore 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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