UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5126
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL L. HEGMON, a/k/a Sweet,
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-00052)
Submitted: April 30, 2007 Decided: May 29, 2007
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:
Michael L. Hegmon appeals his seventy-eight month
sentence the district court imposed after Hegmon pled guilty,
pursuant to a plea agreement, to one count of distribution of a
quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2000). For the following reasons, we affirm.
In post-Booker* sentencing, district courts must
calculate the appropriate Guidelines range, consider the range in
conjunction with other relevant factors under 18 U.S.C. § 3553(a)
(2000), and impose a sentence. United States v. Moreland, 437 F.3d
424, 432-33 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). A
sentence imposed within a properly calculated Guidelines range is
presumptively reasonable. United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
On appeal, Hegmon contends that the district court
erroneously calculated his advisory Guideline range by attributing
to him a quantity of drugs and possession of a firearm that were
not admitted as a part of his guilty plea. However, a sentencing
court treating the Guidelines as advisory continues to make factual
findings concerning sentencing factors by a preponderance of the
evidence. See United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005), cert. denied, 127 S. Ct. 121 (2006).
*
United States v. Booker, 543 U.S. 220 (2005).
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Hegmon also contends that the presumption of
reasonableness this court affords post-Booker sentences that are
within a properly calculated Guidelines range is unconstitutional.
A plethora of circuit precedent forecloses this argument. See,
e.g., United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006), petition for cert. filed, __ U.S.L.W. __ (U.S. July 21,
2006) (No. 06-5439); United States v. Johnson, 445 F.3d 339, 341-42
(4th Cir. 2006); United States v. Moreland, 437 F.3d 424, 433 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006); United States v.
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006). Because one panel of this court cannot overrule another,
we decline Hegmon’s invitation to ignore established circuit
authority. See United States v. Chong, 285 F.3d 343, 346-47 (4th
Cir. 2002).
Finally, Hegmon asserts that his sentence is unreasonable
because it is it greater than necessary to comply with the purposes
of sentencing set forth in § 3553(a). A defendant can only rebut
the presumption a properly calculated Guidelines range is
reasonable “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 post-Booker
sentence may be unreasonable for procedural and substantive
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reasons. “A sentence may be procedurally unreasonable, for
example, if the district court provides an inadequate statement of
reasons . . . . A sentence may be substantively unreasonable if
the court relies on an improper factor or rejects policies
articulated by Congress or the Sentencing Commission.” United
States v. Moreland, 437 F.3d 424, 434 (4th Cir.) (internal
quotation marks and citation omitted), cert. denied, 126 S. Ct.
2054 (2006).
Hegmon’s seventy-eight month sentence is presumptively
reasonable because it is within both the properly calculated
Guidelines range and the applicable statutory maximum. Moreover,
the record reflects that the district court complied with
§ 3553(a), and explicitly considered the nature and circumstances
of the offense, Hegmon’s history and characteristics, and the need
for deterrence.
For the foregoing reasons, we affirm the district court’s
judgment. 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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