UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4130
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL W. WIRSING, a/k/a Ace, a/k/a Big Dog,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00049-JPB-DJJ-1)
Submitted: April 27, 2009 Decided: May 21, 2009
Before MICHAEL, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin D. Mills, MILLS & WAGNER, PLLC, Martinsburg, West
Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Wirsing pled guilty, pursuant to a written plea
agreement, to two counts of a fifteen-count indictment: felon
in possession of a firearm, 18 U.S.C. § 922(g) (2006) (Count
Ten), and possession with intent to distribute 16 grams of crack
cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2006) (Count
Fourteen). Based on a total offense level of 31 and a criminal
history category VI, the advisory guidelines range was 188-235
months imprisonment. After rejecting Wirsing’s arguments that
his criminal history status overstated the seriousness of his
actual criminal history and that his sentencing range was
significantly above that of his co-defendant’s sentence, the
court sentenced Wirsing to 188 months imprisonment. Wirsing
noted a timely appeal.
We review a sentence, whether inside or outside of the
guidelines range, for abuse of discretion. Gall v. United
States, 128 S. Ct. 586, 596 (2007); see also United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). First, we must
“ensure that the district court committed no significant
procedural error,” such as improperly calculating the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, relying on clearly erroneous facts, or
failing to adequately explain the chosen sentence. Gall, 128 S.
Ct. at 597. If the district court committed no procedural
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error, then we consider the substantive reasonableness of the
sentence imposed, “tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Id.
Applying these standards, we find that Wirsing’s
sentence is reasonable. First, the district court committed no
procedural errors. Although Wirsing argues that the district
court failed to consider all of his non-frivolous arguments, the
district court is not required to “robotically tick through
§ 3553(a)’s every subsection.” United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006). Additionally, “when a judge
decides simply to apply the Guidelines . . . doing so will not
necessarily require lengthy explanation.” Rita v. United
States, 551 U.S. 338, __, 127 S. Ct. 2456, 2468 (2007). Here,
the court stated that it had considered all the factors set
forth in § 3553(a) and noted that Wirsing had two prior drug
felonies, a felony theft conviction, and a firearm in vehicle
conviction. The court also noted that Wirsing’s present offense
was committed within two years after his release from custody on
a prior felony. Further, the court found that Wirsing was not a
crack addict, but rather was in the business of selling crack,
as evidenced by his lack of employment since 2002. The court
also found, in response to Wirsing’s challenge to the crack to
powder cocaine disparity even after the guidelines were amended,
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that there was a rational basis for the disparity and that
Wirsing had already been given the benefit of the recent
amendments to the sentencing guidelines applicable to crack
cocaine offenses. The court also rejected Wirsing’s argument
that his first felony drug conviction should not be considered a
conviction for purposes of the career offender enhancement,
finding that Wirsing’s criminal history category was VI,
regardless of whether or not the career offender enhancement was
applied.
With respect to the substantive reasonableness of
Wirsing’s sentence, on appeal, we presume that a sentence
imposed within the properly calculated guidelines range is
reasonable. Rita, 127 S. Ct. at 2462-69; United States v. Go,
517 F.3d 216, 218 (4th Cir. 2008). Applying the presumption of
reasonableness to Wirsing’s within-guidelines sentence, we find
no abuse of discretion by the district court’s decision to
impose a 188-month sentence. Therefore, the sentence is
reasonable.
Finally, Wirsing argues that the application of the
career offender enhancement violates the holding of Apprendi v.
New Jersey, 530 U.S. 466 (2005), because the district court
relied on facts not found by a jury. We have explicitly
rejected this argument. See United States v. Collins, 412 F.3d
515, 521-23 (4th Cir. 2005).
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Accordingly, we affirm Wirsing’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately addressed in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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