UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4011
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS ANDERSON BURR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(CR-04-917)
Submitted: August 27, 2008 Decided: October 2, 2008
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, Cincinnati, Ohio, for Appellant. Reginald I.
Lloyd, United States Attorney, Rose Mary Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Anderson Burr appeals the 168-month sentence imposed
following his guilty plea to two counts of interstate domestic
violence, in contravention of 18 U.S.C. § 2261(a)(1), (a)(2),
(b)(3), and one count of using and carrying a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). As
explained below, we affirm.
I.
A.
The government has moved to dismiss Burr’s appeal on the basis
of a waiver of appellate rights Burr signed on the morning of his
sentencing hearing. We review the effectiveness of an appeal
waiver de novo, United States v. Brown, 232 F.3d 399, 403 (4th Cir.
2000), and will uphold the waiver if the record establishes that
the waiver is valid and covers the issue being appealed. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). A waiver is
valid if the defendant’s agreement to the waiver was knowing and
voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.
1991). Though it is a close call, we are unable to conclude, in
the unique circumstances of this case, that Burr knowingly and
voluntarily waived the right to appeal his sentence. See Blick,
408 F.3d at 169 (noting that voluntariness is assessed by reference
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to totality of circumstances). Accordingly, we deny the
government’s motion to dismiss the appeal and turn to the issues
Burr raises on appeal.
B.
1.
Burr challenges his sentence as unreasonable on two grounds.
First, he claims that the district court erred by imposing
enhancements to his offense level under the sentencing guidelines
based on facts found by a preponderance of the evidence, rather
than beyond a reasonable doubt. Second, he claims that the
sentence, which constitutes a substantial downward variance from
the advisory guidelines range, is still greater than necessary to
comply with the purposes of sentencing.
After United States v. Booker, 543 U.S. 220 (2005), district
courts are no longer bound by the range prescribed by the
sentencing guidelines. When sentencing a defendant, a district
court must first properly calculate the guidelines range. United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The
guidelines are “the starting point and the initial benchmark.”
Gall v. United States, 128 S. Ct. 586, 596 (2007). Next, the
“court must give both the government and the defendant ‘an
opportunity to argue for whatever sentence they deem appropriate.’”
Pauley, 511 F.3d at 473 (quoting Gall, 128 S. Ct. at 596). The
court is then instructed to consider the factors outlined in 18
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U.S.C. § 3553(a) “to determine whether they support the sentence
requested by either party.” Id. If the court decides to impose a
variance sentence, the court “‘must consider the extent of the
deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.’” Id. (quoting
Gall, 128 S. Ct. at 597). Finally, “[a]fter settling on the
appropriate sentence, [the court] must adequately explain the
chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Gall, 128 S. Ct. at
597.
We review sentences imposed by district courts for
reasonableness, applying a two-step abuse of discretion standard.
Gall, 128 S. Ct. at 597; Pauley, 511 F.3d at 473. The first step
of our review “examines the sentence for significant procedural
errors, the second looks at the substance of the sentence.”
Pauley, 511 F.3d at 473.
We reject Burr’s contentions that the district court committed
procedural and substantive error in calculating his sentence, which
is significantly below the advisory guidelines range. The court
was entitled to impose enhancements to Burr’s guidelines offense
level based on facts found by a preponderance of the evidence.
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).
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Moreover, Burr’s sentence is not greater than necessary to comply
with the purposes of sentencing, and is not unreasonably high.*
2.
Finally, Burr argues that his sentence violated the Ex Post
Facto Clause because the district court applied Booker at
sentencing even though that decision issued after the date of his
offenses. Retroactively applying the remedial portion of Booker
does not violate the Ex Post Facto Clause. See United States v.
Davenport, 445 F.3d 366, 369-70 (4th Cir. 2006) (recognizing that
retroactive application of Booker did not violate Ex Post Facto
Clause because defendant was on notice of maximum statutory penalty
when he committed crime), overruled in part on other grounds by
Irizarry v. United States, 128 S. Ct. 2198 (2008). Because Burr
was on notice of the maximum statutory penalties when he committed
his crimes, this claim is also without merit.
II.
Pursuant to the foregoing, we affirm Burr’s sentence.
AFFIRMED
*
If anything, Burr’s sentence may be too low. Because the
government has not cross-appealed on this issue, however, we are
precluded from ordering an increase in Burr’s sentence. See
Greenlaw v. United States, 128 S. Ct. 2559, 2562 (2008) (holding
that, when defendant unsuccessfully challenges his sentence as too
high, court of appeals may not increase sentence on its own
initiative).
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