UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4231
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT H. POORE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
Chief District Judge. (2:06-cr-00177)
Submitted: September 5, 2007 Decided: September 24, 2007
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John J. Frail, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert H. Poore appeals his sentence to ninety-two months
in prison and four years of supervised release after pleading
guilty to possession with intent to distribute five grams or more
of cocaine base in violation of 21 U.S.C. § 841(a)(1) (2000). On
appeal, Poore contends the district court erred by not fully
considering the factors under 18 U.S.C. § 3553(a) (2000) after
granting him an eight-level downward departure for substantial
assistance, and his sentence at the low end of his guideline range
is unreasonable because it is greater than necessary to comply with
the purposes of sentencing. We affirm.
We will affirm the sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
Although the guidelines are no longer mandatory, they must still be
consulted and taken into account when sentencing. United States
v. Booker, 543 U.S. 220, 264 (2005). A sentence within a properly
calculated advisory guideline range is presumptively reasonable.
United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006); see Rita v. United States, 127 S. Ct. 2456
(2007) (upholding presumption of reasonableness). This presumption
can only be rebutted by showing that the sentence is unreasonable
when measured against the factors under 18 U.S.C. § 3553(a) (2000).
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United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006),
cert. denied, 127 S. Ct. 3044 (2007).
“After Booker, sentencing requires two steps. First, the
district court must consult the Sentencing Guidelines and correctly
calculate the range provided by the Guidelines. Second, the court
must consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) and then impose a sentence.”
United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006) (citations
omitted). “In doing so, the district court should first look to
whether a departure is appropriate based on the Guidelines Manual
or relevant case law.” United States v. Moreland, 437 F.3d 424,
432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). “If an
appropriate basis for departure exists, the district court may
depart. If the resulting departure range still does not serve the
factors set forth in § 3553(a), the court may then elect to impose
a non-guideline sentence (a ‘variance sentence’).” Id.
On appeal, Poore contends the district court erred in its
variance analysis, and his sentence at the low end of his guideline
range is unreasonable because it is greater than necessary to
promote respect for the law and provide just punishment for the
offense. We disagree. After granting Poore an eight-level
downward departure for substantial assistance to the Government,
the district court properly considered the factors under § 3553(a)
and reasonably concluded a sentence at the bottom of Poore’s
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departure range was necessary to promote respect for the law and
deter him from future criminal conduct. The court further found
the sentence was sufficient but not greater than necessary for the
offense, taking into account the circumstances of the offense,
Poore’s history and characteristics, and the need for punishment.
We therefore 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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