UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4453
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDALL EUGENE HILLIAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:04-cr-00041-WLO)
Submitted: January 9, 2008 Decided: January 24, 2008
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, THE LAW OFFICES OF AMES C. CHAMBERLIN, PLLC,
Greensboro, North Carolina, for Appellant. Robert Albert Jamison
Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randall Eugene Hillian appeals his sentence imposed
following this court’s remand for resentencing. See United
States v. Hillian, 210 F. App’x 251 (4th Cir. 2006) (unpublished).
Finding no error, we affirm.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no meritorious
grounds for appeal, but questioning whether the sentence is
reasonable. In his pro se supplemental brief, Hillian joins his
counsel in arguing that the sentence is unreasonable. Hillian
additionally contends that 18 U.S.C. § 3553(a) (2000), as applied
to him, is unconstitutional. The Government elected not to file a
responding brief.
Initially, Hillian contends that his sentence is
unreasonable. However, the district court appropriately treated
the Sentencing Guidelines as advisory, properly calculated and
considered the advisory guideline range, and weighed the relevant
18 U.S.C. § 3553(a) factors. See United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005). As Hillian’s applicable advisory
guideline range of 120 to 150 months was greater than the statutory
maximum of 120 months’ imprisonment, see 18 U.S.C. § 924(a)(2)
(2000), the court properly determined that the statutory maximum
was the advisory guideline sentence. See U.S. Sentencing
Guidelines Manual § 5G1.1(c)(1) (2003). Thus, Hillian’s 120-month
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sentence is presumptively reasonable. See 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, 2462-65 (2007)
(approving presumption of reasonableness accorded sentences within
properly calculated guideline range).
Hillian additionally contends that § 3553(a), as applied
to him, is unconstitutional. He argues that “[t]his must be so,
because the factors lead to nothing more than a guideline
sentence.” However, the mere fact that Hillian received the
advisory guideline sentence does not render § 3553(a)
unconstitutional. Rather, it reflects that the district court
found the Sentencing Commission’s view of the appropriate
application of § 3553(a) factors suitable. Therefore, we discern
no basis in the record to conclude that the presumption of
reasonableness has been overcome.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Hillian’s sentence. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
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was served on the client. 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 in the
decisional process.
AFFIRMED
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