UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4604
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE VASHON HILLIARD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00429-WLO)
Submitted: February 13, 2008 Decided: March 10, 2008
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Vashon Hilliard appeals the seventy-eight month
sentence he received following his guilty plea to one count of
being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2000). Finding no error, we affirm.
The district court accepted Hilliard’s guilty plea, and
a presentence report (“PSR”) was completed. Hilliard’s base
offense level of twenty-four was increased four levels, pursuant to
U.S. Sentencing Guidelines Manual § 2K2.1(a)(2), (b)(6) (2006)
(“USSG”), because Hilliard possessed the firearm in connection with
a drug offense — possession with intent to sell marijuana.
Hilliard agreed to the Guidelines calculation set forth
in the PSR, which the district court adopted without objection.
Defense counsel noted Hilliard’s concern that the four-level
enhancement raised a potential Blakely1 issue, because Hilliard did
not admit to the factual basis for the enhancement and the facts
supportive of it had not been proven to a jury.2 The district
court did not specifically address this contention.
Prior to sentencing Hilliard, the district court offered
the following statement:
1
Blakely v. Washington, 542 U.S. 296 (2004).
2
Counsel acknowledged that, in light of United States v.
Booker, 543 U.S. 220 (2005), he had “no legal basis” for the
objection, and that he raised the issue only because Hilliard was
“troubled” by it.
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The Court has reviewed the sentencing guidelines and
35533 and all the parts of 3553, and the Court cannot
find that the sentence outside the guideline range is
more affective of that which is inside the guideline
range, and, therefore, the Court finds a reasonable
sentence considering all factors to be . . . 78 months.
This appeal followed.
Hilliard first contends the district court improperly
afforded the sentencing range calculated pursuant to the Guidelines
a presumption of reasonableness.
As recently determined by the Supreme Court,
“[r]egardless of whether the sentence imposed is inside or outside
the Guidelines range, the appellate court must review the sentence
under an abuse-of-discretion standard.” Gall v. United States, __
U.S. __, 128 S. Ct. 597 (2007). Appellate courts remain charged
with reviewing sentences for reasonableness. Id. at 594, 597.
Reasonableness review requires appellate consideration of both the
procedural and substantive reasonableness of a sentence. Id. at
597.
In determining whether a sentence is procedurally
reasonable, this court first assesses whether the district court
properly calculated the defendant’s advisory Guidelines range. Id.
at 596-97. This court must then assess whether the district court
considered the § 3553(a) factors and any arguments presented by the
parties, selected a sentence based on “clearly erroneous facts,” or
3
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).
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failed to sufficiently explain the selected sentence. Id. at 597;
United States v. Pauley, __ F.3d __, 2007 WL 4555520, *5 (4th Cir.
Dec. 28, 2007). Finally, this court reviews the substantive
reasonableness of the sentence, “taking into account the ‘totality
of the circumstances, including the extent of any variance from the
Guidelines range.’” Pauley, 2007 WL 4555520, *5 (quoting Gall, 128
S. Ct. at 597). This court may afford sentences that fall within
the properly calculated Guidelines range a presumption of
reasonableness, see id., a presumption permitted by the Supreme
Court. Rita v. United States, __ U.S. __, 127 S. Ct. 2456, 2459,
2462 (2007).
Upon reviewing the record, we conclude that, although the
district court used the word “reasonable” in describing the
sentence it would impose, this choice of verbiage does not render
Hilliard’s sentence procedurally unreasonable. The district court
clearly understood and adhered to the proper sentencing procedure.
The district court reiterated the interplay between the Guidelines
and the § 3553(a) factors at both the Rule 11 and the sentencing
hearings, and at sentencing, the district court specifically stated
it had considered them both in reaching a sentencing determination.
Hilliard lodged no objection regarding the calculation of his
Guidelines range in the PSR, which the district court adopted
without change. Accordingly, the district court was under no
obligation to further articulate the reasons for the sentence
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imposed, which fell within the Guidelines range and well below the
ten-year statutory maximum. See Rita, 127 S. Ct. at 2468.
Hilliard next ascribes error to the four-level
enhancement imposed for possessing the firearm in connection with
commission of a drug offense. Hilliard maintains application of
this enhancement violated his Fifth and Sixth Amendment rights
because it was based on uncharged, unadmitted conduct that was not
proven to a jury beyond a reasonable doubt, but instead found by
the district court by a preponderance of the evidence.
Hilliard’s contention lacks support in the record. The
facts supporting the drug enhancement were set forth at the Rule 11
hearing and in the PSR. Hilliard raised no objection. Hilliard
may not, at this late stage, assert the conduct underlying this
enhancement was unadmitted.
Moreover, as Hilliard correctly acknowledges in his
brief, Booker did not truncate the district court’s authority to
find facts supporting enhancements using the preponderance of the
evidence standard. See United States v. Morris, 429 F.3d 65, 72
(4th Cir. 2005). Despite Hilliard’s protestations to the contrary,
Rita did not overrule Morris or otherwise diminish the district
court’s authority and obligation to make factual determinations to
assess the calculation of a defendant’s advisory Guidelines range.
See Rita, 127 S. Ct. at 2465-66 (“This Court’s Sixth Amendment
cases do not automatically forbid a sentencing court to take
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account of factual matters not determined by a jury and to
increase the sentence in consequence.”).
For the foregoing reasons, we 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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