UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4654
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARREN EDWIN MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:02-cr-01280-CWH)
Submitted: September 10, 2009 Decided: October 7, 2009
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
G. Wells Dickson, Jr., WELLS DICKSON, PA, Charleston, South
Carolina, for Appellant. Rose Mary Sheppard Parham, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Warren E. Moore appeals from the sentence imposed
after the district court held a resentencing hearing upon
remand. The district court again imposed a 108-month sentence
for knowingly, intentionally, and unlawfully distributing and
possessing with intent to distribute, a quantity of cocaine. *
Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but raising the issue of whether
Moore was properly resentenced based on a quantity of drugs not
charged in the indictment or admitted by the defendant. Counsel
also raises a general argument regarding the reasonableness of
the sentence. Finding no error, we affirm.
Moore’s Sixth Amendment rights were not violated by
the court’s drug quantity finding because the district court
enhanced Moore’s Guidelines range based on facts found by it
under a preponderance of the evidence standard. Because the
district court appropriately treated the resultant Guidelines
range as merely advisory, and since Moore’s sentence was within
the statutory maximum authorized by the jury’s verdict, the
*
This case was placed in abeyance for United States v.
Antonio, 311 F. App’x 679 (4th Cir. 2009) (No. 07-4791). We
have reviewed Antonio and find that it does not change the
outcome of this appeal.
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district court fully complied with the Sixth Amendment. See
United States v. Booker, 543 U.S. 220, 232-44 (2005) (holding
that judge-found sentence enhancements mandatorily imposed under
the Guidelines that result in a sentence greater than that
authorized by the jury verdict or facts admitted by the
defendant violate the Sixth Amendment’s guarantee of the right
to trial by jury); see also Rita v. United States, 551 U.S. 338,
352 (2007) (recognizing that the Court’s “Sixth Amendment cases
do not automatically forbid a sentencing court to take account
of factual matters not determined by a jury and to increase the
sentence in consequence”); United States v. Benkahla, 530 F.3d
300, 312 (4th Cir. 2008) (recognizing only that “the Guidelines
must be advisory, not that judges may find no facts”), cert.
denied, 129 S. Ct. 950 (2009).
Moore’s Anders brief also makes a general reasonable
sentence argument. After Booker, a sentencing court must engage
in a multi-step process at sentencing. First, it must calculate
the appropriate Guidelines range. It must then allow the
parties to argue for “whatever sentence they deem appropriate,”
consider the Guidelines range in conjunction with the factors
set forth in 18 U.S.C. § 3553(a) (2006), and select and explain
an appropriate sentence. United States v. Abu Ali, 528 F.3d
210, 259-60 (4th Cir. 2008) (internal quotation marks and
citation omitted), cert. denied, 129 S. Ct. 1312 (2009).
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Appellate review of a sentence is for abuse of
discretion. Gall v. United States, 552 U.S. 38, ___, 128 S. Ct.
586, 597 (2007); see also United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007). The appellate court must ensure that the
district court committed no procedural error, such as improperly
calculating the Guidelines range, considering the Guidelines to
be mandatory, failing to consider the § 3553(a) factors,
sentencing based on clearly erroneous facts, or failing to
adequately explain the chosen sentence. Gall, 128 S. Ct. at
597.
The appellate court then considers the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances, including any variance from the Guidelines
range. Pauley, 511 F.3d at 473. This court presumes on appeal
a sentence within the Guidelines range to be reasonable; it may
not presume a sentence outside the range to be unreasonable.
Id.
In imposing Moore’s sentence, the district court
correctly calculated the Guidelines range and specifically
considered both the advisory nature of the Guidelines and the
§ 3553(a) factors. We therefore conclude that Moore’s sentence
is both procedurally and substantively reasonable and the
district court did not abuse its discretion in imposing the
sentence.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Moore’s sentence. This court requires that
counsel inform Moore, in writing, of the right to petition the
Supreme Court of the United States for further review. If Moore
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 Moore. 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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