UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4194
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY LEWIS KIRKPATRICK,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:07-cr-00126-JAB-1)
Submitted: June 26, 2008 Decided: July 1, 2008
Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Robert Albert Jamison Lang, Assistant United States
Attorney, Winston-Salem, North Carolina; Angela Hewlett Miller,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry Kirkpatrick pled guilty, pursuant to a written plea
agreement, to robbery affecting interstate commerce, 18 U.S.C.
§ 1951 (2000) (“Hobbs Act”), and was sentenced to 174 months
imprisonment. Kirkpatrick timely appealed. His attorney has filed
a brief in accordance with Anders v. California, 386 U.S. 738
(1967), identifying no meritorious grounds for appeal but
questioning whether the sentence imposed was reasonable. Although
informed of his right to file a supplemental pro se brief,
Kirkpatrick has not done so.
This court reviews the sentence imposed by the district
court for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 128 S. Ct. 586, 597 (2007); see also United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When
sentencing a defendant, a district court must: (1) properly
calculate the guideline range; (2) treat the guidelines as
advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2008); and (4) explain its reasons for selecting
a sentence. Pauley, 511 F.3d at 473. While the district court
must consider the various § 3553(a) factors and explain its
sentence, it need not explicitly reference § 3553 or discuss every
factor on the record. United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006). Further, this court considers that “[a] sentence
within the proper Sentencing Guidelines range is presumptively
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reasonable.” United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007) (upholding application of rebuttable presumption of
correctness of within-guideline sentence).
Here, the district court followed the appropriate
procedures in sentencing Kirkpatrick, and we find no abuse of
discretion in its sentence of 174 months of imprisonment. We
therefore find that Kirkpatrick’s sentence is reasonable. In
accordance with Anders, we have reviewed the record in this case
and have found no meritorious issues for appeal. We therefore
affirm the district court’s judgment. 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 in this
court for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof 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 the decisional process.
AFFIRMED
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