UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4039
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT HURTE, II,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:06-cr-00124)
Submitted: July 25, 2007 Decided: August 13, 2007
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Hurte, II, appeals a 180-month sentence imposed
upon him following his guilty plea to one count of distribution of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) (2000), and one
count of being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). On appeal, Hurte argues
that the sentence is unreasonable because it is greater than
necessary to reflect the seriousness of the crime, to promote
respect for the law, to promote adequate deterrence and to provide
just punishment. Hurte further argues that his classification as
a career offender overstates both the seriousness of his offenses
and his criminal history. After thoroughly reviewing the record,
we affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
district court is no longer bound by the range prescribed by the
sentencing guidelines. United States v. Hughes, 401 F.3d 540, 546-
47 (4th Cir. 2005). A court must initially calculate the
appropriate Guidelines range, making any appropriate factual
findings. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.
2006). The court then considers the resulting advisory Guidelines
range in conjunction with the factors under 18 U.S.C. § 3553(a)
(West 2000 & Supp. 2007), and determines an appropriate sentence.
Davenport, 445 F.3d at 370. This Court will affirm a post-Booker
sentence if it is within the statutorily prescribed range and is
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reasonable. Hughes, 401 F.3d at 546-47. A sentence within the
proper advisory Guidelines range is presumptively reasonable.
United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006); see also Rita v. United States, 127 S. Ct.
2456, 2462 (2007)(“Court of Appeals may apply a presumption of
reasonableness to a district court sentence that reflects a proper
application of the Sentencing Guidelines.”).
Hurte did not object to the applicable calculation of his
advisory guideline range. The offense level was based on conduct
he pled guilty to, and did not involve judicial fact-finding. The
district court’s sentence was within the guideline range and is
thus presumptively reasonable. Green, 436 F.3d at 457.
Hurte has not overcome the presumption of reasonableness.
One of Hurte’s predicate offenses for the career offender
determination was an aggravated robbery. Hurte committed this
offense by breaking into a residence, along with two co-
conspirators, while wearing a ski-mask and possessing a firearm.
The three perpetrators ordered the victim to give them money at
gunpoint. The second offense, which occurred nine months before
the aggravated robbery, involved Hurte’s purchase of two pounds of
marijuana from an undercover police officer. The state court
imposed a ten-year suspended sentence for the aggravated robbery
offense and a five-year suspended sentence for the controlled
substance offense, to run concurrently. In spite of this lenient
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treatment, Hurte committed the offenses in this case. Under these
circumstances, we find the sentence reasonable.
Accordingly, 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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