UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4190
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN BELL JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:06-cr-00178-BR-1)
Submitted: August 29, 2007 Decided: September 26, 2007
Before WILKINSON and MICHAEL, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On November 28, 2005, North Carolina State Highway Patrol
Trooper J.C. Horniak stopped a vehicle in Cumberland County, North
Carolina. Inside the vehicle were Marvin Bell Johnson and his
girlfriend, Nichelle Renia Steele. Trooper Horniak asked Johnson
for his license. Johnson told the trooper that his license was in
the trunk. As Johnson stepped out of the vehicle, supposedly to
retrieve his license, he picked up a .45 caliber handgun he had
hidden under the driver’s floor mat.
As Johnson approached the rear of the car, he removed the
handgun and began shooting at Trooper Horniak. Johnson fired a
total of seven shots at Horniak, striking him six times. An
eyewitness to the shooting called 911; Horniak survived. Johnson
was subsequently arrested at a Super 8 Motel in Fayetteville, North
Carolina. In Johnson’s hotel room, police recovered the gun used
by Johnson.
A grand jury charged Johnson with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2000). Johnson pled guilty without the benefit of a plea
agreement.
After Johnson’s guilty plea, the probation office
prepared a presentence investigation report. In the report, the
probation officer noted that the guideline generally applicable to
a violation of § 922(g)(1) was U.S. Sentencing Guidelines Manual
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§ 2K2.1(a)(4) (2006), which called for a base offense level of 20.
However, the probation officer concluded that, pursuant to the
cross-reference in § 2K2.1(c)(1), the appropriate guideline was the
guideline for attempted murder in § 2A2.1. The probation officer
then determined that the appropriate base offense level was 33, as
the object of the offense would have constituted first degree
murder. The officer then recommended a four level increase under
§ 2A2.1(b)(1)(A) because the victim sustained permanent or life-
threatening injuries. The probation officer then recommended a
six-level increase for Johnson’s knowledge that he assaulted a law
enforcement officer during the course of the offense in a manner
that created substantial risk of bodily injury. The probation
officer finally recommended a three-level reduction for acceptance
of responsibility, for a total offense level of 40.
Johnson’s prior criminal record included convictions for
second degree murder, using a firearm in a threatening manner while
committing murder, failing to appear for a scheduled court
proceeding, and misdemeanor assault and battery. Johnson’s prior
convictions resulted in a total of five criminal history points.
Two additional points were added because Johnson committed the
current offense while on parole. Johnson’s total criminal history
score placed him in a criminal history category of IV. Johnson’s
resulting advisory guidelines range was 360 months to life
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imprisonment. However, due to the statutory maximum of ten years,
the guidelines range was 120 months. U.S.S.G. § 5G1.1(a).
The district court sentenced Johnson to 120 months’
imprisonment. Johnson timely noted an appeal; he argues on appeal
that his sentence was unreasonable because his advisory guidelines
range was established by uncharged conduct. For the reasons that
follow, we affirm.
A sentencing court may rely on uncharged facts in
determining an appropriate sentence within the statutory range.
United States v. Booker, 543 U.S. 220, 233 (2005). After Booker,
a sentencing court continues to make those factual findings
concerning sentencing factors by a preponderance of the evidence.
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert.
denied, 127 S. Ct. 121 (2006). Moreover, long-standing authority
has permitted the sentencing court to consider any evidence at
sentencing that “has sufficient indicia of reliability,” see
U.S.S.G. § 6A1.3(a), including “conduct underlying [an] acquitted
charge, so long as that conduct has been proved by a preponderance
of the evidence.” United States v. Watts, 519 U.S. 148, 156-67
(1997) (per curiam); United States v. Montgomery, 262 F.3d 233, 249
(4th Cir. 2001).
Here, the relevant guidelines range was the statutory
maximum provided by 18 U.S.C. § 922(g). See United States v.
Hughes, 401 F.3d 540, 545-46 (4th Cir. 2005). Johnson’s sentence
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fell within the statutory maximum of ten years imprisonment, and
therefore, the district court’s factual determinations by a
preponderance of the evidence in calculating Johnson’s advisory
guidelines range did not violate his Fifth and Sixth Amendment
rights. Apprendi v. New Jersey, 530 U.S. 466 (2000); Morris, 429
F.3d at 72.
Additionally, Johnson’s sentence was procedurally and
substantively reasonable. Following Booker, this court reviews a
sentence for reasonableness. Booker, 543 U.S. 220; Hughes, 402
F.3d at 546-47. In imposing sentence after Booker, sentencing
courts must calculate the appropriate advisory guidelines range by
making any necessary factual findings. United States v. Moreland,
436 F.3d 424, 432 (4th Cir. 2006). The court should then consider
the resulting advisory guidelines range in conjunction with the
factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007)
and determine an appropriate sentence. United States v. Davenport,
445 F.3d 366, 370 (4th Cir. 2006). A sentence within a properly
calculated advisory guidelines range is presumptively reasonable.
Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007).
The district court properly determined Johnson’s advisory
guidelines range. Moreover, Johnson’s sentence was substantively
reasonable. In the course of illegally possessing a firearm,
Johnson shot a North Carolina State Trooper multiple times,
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inflicting life-threatening injuries on him. Also, as noted above,
Johnson’s criminal history includes numerous serious offenses.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as 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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