United States v. Hillian

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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States v. Hillian, 210 F. App’x 251 (4th Cir. 2006) (unpublished).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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