United States v. Malone

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4315

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LARRY G. MALONE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:06-cr-00230-F)

Submitted: January 9, 2008 Decided: February 13, 2008

Before KING and GREGORY, 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

Larry Gene Malone appeals the sentence of ninety-seven

months imposed pursuant to his guilty plea to attempted armed bank

robbery, 18 U.S.C. § 2113(a) (2000), and carrying a firearm during

a crime of violence, 18 U.S.C. § 924(c)(1)(A) (2000). We affirm.

After United States v. Booker, 543 U.S. 220 (2005), a

sentencing court must calculate the appropriate guideline range,

consider that range in conjunction with the factors set forth at 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), and impose sentence.

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). We

review a post-Booker sentence to determine whether it is “within

the statutorily prescribed range” and reasonable. Id. at 547.

“[A] sentence within the proper advisory guidelines range is

presumptively reasonable.” United States v. Johnson, 445 F.3d 339,

341 (4th Cir. 2006); see Rita v. United States, 127 S. Ct. 2456

(2007). When conducting a reasonableness inquiry, we review “legal

questions, including the interpretation of the guidelines, de novo,

while factual findings are reviewed for clear error.” United

States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126

S. Ct. 2054 (2006).

Malone first contends that his offense level should not

have been enhanced by two levels because of his leadership role in

the offense. See U.S. Sentencing Guidelines Manual § 3B1.1(c)

(2006). The evidence, however, establishes that Malone was the

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principal planner of the robbery. He recruited Joseph McKay to

assist in the crime. Additionally, it was Malone who selected the

bank that was to be robbed, carried a gun, and supplied the masks

and gloves that he and McKay wore during the attempted robbery. We

conclude that the district court did not clearly err in finding

that Malone played a leadership role in the offense.

Malone also argues that the district court erred when it

refused to depart downward from the advisory guideline range and

failed to impose a variance sentence. First, the district court’s

decision not to depart is not reviewable on appeal because the

court did not fail to recognize its authority to depart. See

United States v. Cooper, 437 F.3d 324, 333 (3d Cir. 2006); United

States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004). Second, the

district court properly rejected Malone’s request for a variance

sentence, observing that this was not an unusual case. We note

that the sentence imposed was at the low end of the properly

calculated advisory guideline range, was within the statutory

limits, and was imposed after consideration of the sentencing

factors identified at 18 U.S.C.A. § 3553(a). Malone’s age,

employment record, and the allegedly aberrant nature of the offense

are insufficient to overcome the presumption that the sentence

within the advisory guideline range is reasonable. See United

States v. Montes-Pineda, 445 F.3d 275, 279 (4th Cir. 2006), cert.

denied, 127 S. Ct. 3044 (2007).

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 We conclude that the arguments raised on appeal are

without merit and that Malone’s sentence is reasonable. We

accordingly affirm. 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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