UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AVERY WHEELER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr., District
Judge. (2:05-cr-00113-WDK)
Submitted: March 26, 2007 Decided: May 9, 2007
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Duncan R. St. Clair, III, ST. CLAIR & ROSENBLUM, Norfolk, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Laura M.
Everhart, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Avery Wheeler pled guilty to one count of conspiracy to
distribute and possess with intent to distribute five or more
kilograms of cocaine and ten counts of distribution and possession
with intent to distribute cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2000). The district court sentenced Wheeler at
the low end of his advisory guideline range to 235 months in prison
and five years of supervised release. On appeal, Wheeler contends
the district court erred in imposing a sentence under the belief
that the sentencing guidelines were mandatory. We affirm.
We will affirm the sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
Although the guidelines are no longer mandatory, they must still be
consulted and taken into account when sentencing. United States v.
Booker, 543 U.S. 220, 264 (2005). In sentencing a defendant, the
district court must: (1) properly calculate the guideline range;
(2) determine whether a sentence within that range serves the
factors under 18 U.S.C. § 3553(a) (2000); (3) implement mandatory
statutory limitations; and (4) explain its reasons for selecting
the sentence, especially a sentence outside the range. United
States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126
S. Ct. 2309 (2006). “A district court’s reasons for not applying
the properly calculated Guideline range must be based on the
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factors listed in § 3553(a).” Id. at 456. A sentence within a
properly calculated guideline range is presumptively reasonable.
Id. at 457. A sentence will be found unreasonable and vacated if
it is “imposed outside the Guideline range and the district court
provides an inadequate statement of reasons or relies on improper
factors in departing from the Guidelines’ recommendation.” Id.
We conclude the record does not support Wheeler’s claim
that the district court believed the guidelines were mandatory, and
the court did not err in sentencing him at the low end of his
guideline range. The court correctly informed Wheeler that “while
the sentencing guidelines are advisory” the court would “give great
consideration to the sentence that the guidelines recommend.”
After properly calculating the guideline range, the court heard
from the parties as to whether a guideline sentence of 235 to 293
months served the factors set forth under 18 U.S.C. § 3553(a). The
Government argued a sentence within the advisory guideline range
was appropriate. Wheeler requested leniency and argued there was
“some reason for the Court to deviate from the guidelines.”
Considering Wheeler’s history and characteristics, the
court determined that he was not significantly more deserving of a
lower sentence than the typical defendant whose crime and history
had produced his guideline range. See United States v. Perez-Pena,
453 F.3d 236, 245 (4th Cir.), cert. denied, 127 S. Ct. 542 (2006).
Although Wheeler had shown initiative by graduating from college
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and had the support of family and friends, he was also responsible
for distributing a significant quantity of cocaine beginning while
he was on supervised release on a prior conviction for conspiracy
to commit witness retaliation. While the district judge stated his
“personal view” was that 235 months was too severe, he recognized
the need for uniformity in sentencing and concluded the § 3553(a)
factors did not support a variance sentence in Wheeler’s case.
Accordingly, we affirm Wheeler’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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