United States v. Burr

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4011

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

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

2
to totality of circumstances). Accordingly, we deny the

government’s motion to dismiss the appeal and turn to the issues

Burr raises on appeal.

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

3
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.*

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).