Vacated by Supreme Court, February 19, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4765
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY WAYNE SILVER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:04-cr-00062-BR)
Submitted: August 31, 2007 Decided: September 20, 2007
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas R. Wilson, GREEN & WILSON, P.A., New Bern, North Carolina,
for Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Anthony Wayne Silver was
sentenced to 121 months of imprisonment for conspiracy to possess
with intent to distribute more than fifty grams of cocaine base.
(J.A. 9). On appeal, this Court vacated and remanded for
resentencing in light of United States v. Booker, 543 U.S. 220
(2005). See United States v. Silver, 176 F. App’x 416 (4th Cir.
2006) (No. 05-4404). At the resentencing hearing, the district
court referred to the Sentencing Guidelines and sentenced Silver to
235 months of imprisonment, the bottom of advisory sentencing
range. On the record, the court noted that it could find no reason
to deviate outside the advisory sentencing range. On appeal,
Silver raises two issues, whether: (1) this Court ordered the
district court to impose the Sentencing Guidelines as mandatory in
our prior remand opinion, and (2) the district court failed to
apply the sentencing factors in 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2007). For the reasons that follow, we affirm.
Silver’s first issue is simply without merit. Our
opinion made it abundantly clear that the Sentencing Guidelines are
advisory following the Supreme Court’s opinion in Booker.
Second, we have held that a sentence within a
properly-calculated advisory sentencing range is presumptively
reasonable. United States v. Green, 436 F.3d 449, 455-56 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). The Supreme Court has
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recently approved the presumption. Rita v. United States, 127 S.
Ct. 2456, 2462-67 (2007). Silver has failed to rebut the
presumption of reasonableness by demonstrating that his 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). Moreover, a district court need
not “robotically tick through § 3553(a)’s every subsection” or
“explicitly discuss every § 3553(a) factor on the record,” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), and the
Supreme Court has stated that “[w]here a [sentencing] matter is .
. . conceptually simple” and the record makes clear that the
sentencing judge considered the evidence and arguments “we do not
believe the law requires the judge to write more extensively.”
Rita, 127 S. Ct. at 2469.
Accordingly, we affirm Silver’s 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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