UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4916
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRYAN TERRELL DIXON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-cr-00210-BO-3)
Submitted: April 26, 2007 Decided: April 30, 2007
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E.B. Holding, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryan Terrell Dixon pled guilty to one count of
conspiracy to make false statements to licensed firearms dealers in
connection with the acquisition of firearms, 18 U.S.C. § 371 (2000)
(Count One), and possession of a firearm after conviction of a
felony, 18 U.S.C. § 922(g)(1) (2000) (Count Six). Over Dixon’s
objection, the district court applied a cross reference from U.S.
Sentencing Guidelines Manual § 2K2.1(c) (2005) to USSG § 2A2.2
(Aggravated Assault). Then, finding that criminal history category
III did not adequately represent Dixon’s prior criminal conduct,*
USSG § 4A1.3, p.s., the district court departed upward to category
IV and imposed a sentence of 115 months imprisonment. Dixon
contends on appeal that the sentence is unconstitutional because he
was sentenced under a de facto mandatory guideline system. In
consequence, he contends, the district court’s factual findings
concerning the offense level and upward departure rendered the
sentence unreasonable. We affirm.
Because Dixon did not raise this issue in the district
court, our review is for plain error. United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005). In sentencing a defendant after
*
Dixon received no criminal history points for a 2003 incident
in which he shot at police officers who were called to a party
where a friend of his was injured. Although charges were filed,
Dixon was released on bond and temporarily left the state. The
pending charges were dismissed when Dixon was charged with the
instant offenses.
- 2 -
United States v. Booker, 543 U.S. 220 (2005), the district court
must calculate the advisory guideline range and then consider
whether that range “serves the factors set forth in [18 U.S.C.A.]
§ 3553(a) [West 2000 & Supp. 2006)] and, if not, select a sentence
that does serve those factors.” United States v. Green, 436 F.3d
449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). This
court reviews a post-Booker 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.) (internal quotation marks and citation omitted), cert.
denied, 126 S. Ct. 2054 (2006).
“[A] sentence within the proper advisory Guidelines range
is presumptively reasonable.” United States v. Johnson, 445 F.3d
339, 341 (4th Cir. 2006) (citations omitted). However, “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). A sentence outside the guideline range is not
presumptively unreasonable. Green, 436 F.3d at 457. However, the
further the sentencing court diverges from the guidelines, the more
compelling the reasons for the divergence must be. Moreland, 437
F.3d at 434.
- 3 -
In light of our precedents, we find no merit in Dixon’s
claim that our standard of review renders the guidelines per se
mandatory, or that his sentence was unreasonable because the
district court made factual findings in determining the advisory
guideline range and deciding to depart. We further conclude that
the court acted reasonably in departing upward to category IV. See
United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007).
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
- 4 -