UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4801
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALLEN BAIRD, a/k/a Scratch,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:06-cr-00031)
Submitted: February 22, 2007 Decided: February 28, 2007
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George B. Vieweg, III, BAYLISS & PHELAN, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States Attorney,
R. Gregory McVey, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allen Baird pled guilty to aiding and abetting the
distribution of five grams or more of cocaine base (crack), in
violation of 21 U.S.C. § 841(a) (2000), and was sentenced as a
career offender, see U.S. Sentencing Guidelines Manual § 4B1.1
(2005), to 220 months imprisonment. Baird appeals, arguing that
his sentence is plainly unreasonable because the district court did
not depart below the career offender guideline range. We affirm.
At his sentencing hearing, Baird did not contest the
calculation of the advisory guideline range contained in the
presentence report, and conceded that he qualified for sentencing
as a career offender because he had two prior felony drug
convictions. His attorney commented that Baird’s career offender
status was “patently unfair” because the prior offenses involved
small amounts of cocaine and because Baird had a history of drug
abuse. Counsel acknowledged that the career offender sentencing
scheme was “out of the control of this Court, [and] it could only
change via Congress or the Supreme Court.” Counsel requested a
sentence at the low end of the advisory guideline range. It is not
evident from the materials presented on appeal that Baird requested
a sentence outside the guideline range. On appeal, however, Baird
contends that his sentence is presumptively unreasonable because
the district court failed to give him a variance sentence within
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the range that would have applied had he not been a career
offender.
The sentencing court’s first responsibility, even after
United States v. Booker, 543 U.S. 220 (2005), is to correctly
determine the applicable guideline range. United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). Baird does not allege that the
district court erred in this respect. If the court then determines
that a sentence within that range does not serve the factors set
out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the court
may consider a departure or a variance sentence. The record here
discloses that the district court was well aware of its
responsibilities, and decided that it could not discern “any reason
not to apply the career offender provisions . . . . or to apply a
sentence that is outside the guideline range.” Consequently, we
find no basis for concluding that the sentence is unreasonable.
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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