UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5106
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANTZ MICHEL, a/k/a John Doe, a/k/a Freon,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:00-cr-00141-HEH)
Submitted: July 25, 2007 Decided: August 16, 2007
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher C. Booberg, THE JOEL BIEBER LAW FIRM, Richmond,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
John S. Davis, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frantz Michel was convicted of conspiracy to possess with
intent to distribute a quantity of heroin, a quantity of cocaine,
and more than fifty grams of cocaine base “crack” in violation of
21 U.S.C. § 846 (2000), and was sentenced to life imprisonment.
This court affirmed Michel’s conviction and sentence. After the
Supreme Court vacated and remanded on United States v. Booker, 543
U.S. 220 (2005), grounds, this court vacated and remanded for the
district court to resentence Michel in light of the fact that the
Federal Sentencing Guidelines were no longer mandatory.
On remand, the district court held another sentencing
hearing. The parties did not dispute the factual findings in the
original presentence report. Further, the court understood that
the Sentencing Guidelines were advisory and considered the
sentencing factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2007). The court denied Michel’s motion for a downward
departure/variance, and again sentenced Michel to life
imprisonment. The life sentence was within Michel’s advisory
sentencing range based on his total offense level of 44 and his
criminal history category of I.
Michel raises numerous issues on appeal but primarily
attacks the reasonableness of his resentencing. Many of Michel’s
claims are barred as being beyond the scope of this court’s remand.
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). We review a
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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.), cert. denied, 126
S. Ct. 2054 (2006). In a post-Booker sentencing, a court must
calculate the advisory Sentencing Guidelines range, consider
whether that range serves the factors set forth in § 3553(a) 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). A sentence within a properly-calculated advisory
Guidelines range is presumptively reasonable. Rita v. United
States, 127 S. Ct. 2456, 2462-69 (2007). A defendant can only
rebut the presumption of reasonableness 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), cert. denied, 127 S. Ct. 3044 (2007). We find the
sentence was reasonable and Michel has failed to rebut the
presumption of reasonableness.
Accordingly, we affirm. 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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