UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4260
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VERNON BROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:03-cr-00020)
Submitted: January 10, 2007 Decided: April 12, 2007
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew W. Greene, SMITH & GREENE, P.L.L.C., Fairfax, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Jennifer R.
Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vernon Brooks appeals the sentence imposed following
remand for resentencing. In our prior decision, we affirmed
Brooks’s convictions of one count of conspiracy to possess with
intent to distribute an unspecified quantity of oxycodone, in
violation of 21 U.S.C. §§ 841, 846 (2000), and carrying on the
oxycodone conspiracy within 1000 feet of a protected area, in
violation of 21 U.S.C. §§ 841, 849 (2000). United States v.
Brooks, 111 F. App’x 701 (4th Cir. 2004). In compliance with the
mandate of the Supreme Court that vacated our decision, we vacated
Brooks’s sentence and remanded for resentencing pursuant to United
States v. Booker, 543 U.S. 220 (2005). United States v. Brooks,
157 F. App’x 603 (4th Cir. 2005).
On remand, the district court utilized the same
Guidelines* calculations that were applied at Brooks’s initial
sentencing — a total offense level of thirty-seven, criminal
history category I and a sentencing range of 210 to 262 months. At
the resentencing hearing, Brooks continued his objections to the
drug quantity determinations but did not state any new or specific
objections, and moved for a downward departure based on his medical
condition. The district court denied Brooks’s departure motion and
sentenced Brooks to 210 months’ imprisonment. Brooks timely
appealed. We affirm.
*
U.S. Sentencing Guidelines Manual (2002).
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On appeal, Brooks asserts that the district court failed
to comply with this court’s mandate remanding for resentencing. He
relies on the following language from the opinion:
The facts that are supported by the verdict of the jury
are that Brooks is responsible for an unspecified
quantity of oxycodone as part of the conspiracy of which
he was a part, and that the conspiracy occurred near a
protected area. These facts correspond with an offense
level of eight, see U.S. Sentencing Guidelines Manual
§§ 2D1.1(c)(17), 2D1.2(a)(1) (2003), and a sentencing
range of zero to six months’ imprisonment.
Brooks, 157 F. App’x at 604-05. He argues that this part of the
opinion established the Guidelines offense level and sentencing
range, and the district court was not permitted to deviate from
this range in resentencing him. Brooks does not challenge the
accuracy of the district court’s factual findings and resultant
Guidelines determinations, but argues that the district court’s
sentence on remand is erroneous because it is an unjustified and
unreasonable departure from the Guidelines range and is based on
facts not found by the jury or admitted by Brooks.
Contrary to Brooks’s assertions, our opinion did not
prescribe the sentencing range to be used on remand. Rather, we
only referenced specific offense levels in the context of
describing the Booker error. Our specific guidance to the district
court was stated as follows: “On remand, the district court should
first determine the appropriate sentencing range under the
guidelines, making all factual findings appropriate for that
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determination.” Brooks, 157 F. App’x at 605. The district court
fully complied with and followed this mandate.
After Booker, a district court is no longer bound by the
range prescribed by the Sentencing Guidelines. United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in imposing a
sentence post-Booker, courts still must calculate the applicable
Guidelines range after making the appropriate findings of fact and
consider the range in conjunction with other relevant factors under
the Guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). This court will affirm a post-
Booker sentence if it “is within the statutorily prescribed range
and is reasonable.” Id. at 433 (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).
The district court explicitly treated the Guidelines as
advisory, and sentenced Brooks only after considering the
Sentencing Guidelines, the § 3553(a) factors, and counsel’s
arguments. Although the district court did not recite facts to
support each § 3553(a) factor, the court need not “robotically tick
through § 3553(a)’s every subsection” or “explicitly discuss every
§ 3553(a) factor on the record.” Johnson, 445 F.3d at 345. Thus,
the Sixth Amendment error that occurred at the first sentencing was
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cured by Brooks’s resentencing under an advisory Guidelines scheme.
We also conclude that Brooks’s sentence is reasonable.
We therefore affirm Brooks’s 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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