UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4642
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY ANTHONY HEARNE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:03-cr-00217-WLO)
Submitted: July 31, 2008 Decided: August 25, 2008
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
J. David James, SMITH JAMES ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Anthony Hearne appeals the 172-month sentence he
received after his case was remanded for resentencing in light of
United States v. Booker, 125 S. Ct. 738 (2005). We affirm.
Hearne first maintains that the rule of this circuit
which affords a rebuttable presumption of reasonableness to a
sentence within a correctly calculated guideline range effectively
reinstates the mandatory guideline scheme and is thus contrary to
Booker and unreasonable. This is an untenable position after Rita
v. United States, 127 S. Ct. 2456, 2462-69 (2007), which upheld our
presumption of reasonableness for a within-guidelines sentence.
Hearne’s two counts of conviction were grouped together
for sentencing purposes under U.S. Sentencing Guidelines Manual
§ 3D1.1(c) (2005). Hearne did not previously challenge the
grouping of the two counts, but now claims that Count Three was the
most serious offense because it had a higher statutory maximum than
Count One, and thus should have been used as the offense level for
the group. He relies on United States v. Brinton, 139 F.3d 718,
722 (9th Cir. 1998), overruled on other grounds by United States v.
Nordby, 225 F.3d 1053 (9th Cir. 2000), overruled on other grounds
by United States v. Buckland, 289 F.3d 558 (9th Cir. 2002).
However, to the extent that Brinton constitutes a ruling on the
issue, and not mere dicta, its reasoning has been rejected by three
circuits. See United States v. Eversole, 487 F.3d 1024, 1032-34
- 2 -
(6th Cir.), cert. denied, 128 S. Ct. 649 (2007); United States v.
Evans, 318 F.3d 1011, 1020 (10th Cir. 2003); United States v.
Kroeger, 229 F.3d 700, 703 (8th Cir. 2000). Moreover, because
Hearne failed to raise this issue in his prior appeal, he has
forfeited review of the issue under the mandate rule. United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
Hearne filed a pro se motion for a downward departure
before he was sentenced. Although the district court assured
Hearne before imposing sentence that it had read everything he
filed, Hearne maintains that the court did not consider the reasons
for a downward departure he set out in his motion, as evidenced by
the court’s failure to discuss most of the arguments he made in
favor of a departure. This court lacks the authority to review the
district court’s decision to deny Hearne the departure he
requested. United States v. Brewer, 520 F.3d 367, 371-72 (4th Cir.
2008). However, a failure to consider the 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2008) factors would constitute a procedural
error. Gall v. United States, 128 S. Ct. 586, 597 (2007).
Nevertheless, “where judge and Commission both determine that” a
guideline sentence is appropriate, “that sentence likely reflects
the § 3553(a) factors.” Rita, 127 S. Ct. at 2467.
Here, the district court decided that a sentence within
the guideline range of 140-175 months was not excessive in light of
the § 3553(a) factors and Hearne’s “record of continuous assaults,
- 3 -
[and] the likelihood of continued criminal activity . . . .” The
court also stated that § 3553 required a sentence “at least equal
to that which is set forth in the Sentencing Guidelines,” because
of the likelihood that Hearne would commit future crimes, the
necessity of protecting the public, and the principle of
deterrence. We are satisfied that no error occurred.
In his first appeal, Hearne contested the district
court’s factual finding that, in addition to the Ruger revolver
charged in the indictment, he had possessed two additional
firearms. This court upheld the district court’s determination
that government witness David Horne was credible when he testified
at sentencing that Hearne threatened him with two guns with an
ammunition clip, which he described first as a Mac 9 and a Mac 10,
and later as “Uzi-like.” At the resentencing, after Hearne’s
testimony, the district court again found that the base offense
level was appropriately enhanced.
Hearne argues that the district court’s finding was
erroneous because it was based on unreliable information. See USSG
§ 6A1.3(a), p.s. However, the district court’s credibility
findings are not reviewable on appeal. See United States v.
Locklear, 829 F.2d 1314, 1317 (4th Cir. 1987). We conclude that
the district court did not clearly err in reaching the same
conclusion it did at the first sentencing.
- 4 -
Last, Hearne argues that the district court erred in
denying his motion to withdraw his guilty plea. Hearne did not
contest the validity of his guilty plea in his first appeal, and
only moved to withdraw his guilty plea after his case was remanded.
Hearne’s challenge to the validity of his guilty plea is not
properly before this court. We previously upheld his conviction,
and his case was remanded for resentencing under Booker only. His
attempt to relitigate the validity of his guilty plea is beyond the
scope of the remand order. See Bell, 5 F.3d at 66-67. Therefore,
we decline to consider his claim that the district court abused its
discretion in denying the motion.
We affirm the sentence imposed by the district court. We
deny Hearne’s motion for leave to file a pro se supplemental brief.
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
- 5 -