UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4935

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHNNY LEE NEWKIRK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle,

District Judge. (7:05-cr-00134-BO)

Submitted: May 23, 2007 Decided: July 11, 2007

Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

David W. Venable, Raleigh, North Carolina, for Appellant. George

E. B. Holding, United States Attorney, Anne M. Hayes, Christine

Witcover Dean, Assistant United States Attorneys, Raleigh, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Vacated by Supreme Court, January 14, 2008
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PER CURIAM:

Following his guilty plea to one count of possession of

a firearm by a convicted felon, in violation of 18 U.S.C.A.

§§ 922(g)(1), 924 (West 2000 & Supp. 2007), Johnny Lee Newkirk was

sentenced to fifty-one months in prison. Newkirk appeals,

challenging the validity of his sentence. 

Newkirk argues that his sentence was unreasonable because

it was greater than necessary to comply with the purposes of 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). In sentencing a

defendant after United States v. Booker, 543 U.S. 220 (2005), the

district court must calculate the advisory guideline range and then

consider whether that range “serves the factors set forth in [18

U.S.C.A.] § 3553(a) and, if not, select a sentence that does serve

those factors.” United States v. Green, 436 F.3d 449, 456 (4th

Cir.), cert. denied, 126 S. Ct. 2309 (2006). This court reviews a

post-Booker sentence “to determine whether the sentence is within

the statutorily prescribed range and is reasonable.” United

States v. Moreland, 437 F.3d 424, 433 (4th Cir.) (internal

quotation marks and citation omitted), cert. denied, 126 S. Ct.

2054 (2006). “[A] sentence within the proper advisory Guidelines

range is presumptively reasonable.” United States v. Johnson, 445

F.3d 339, 341 (4th Cir. 2006) (citations omitted). “[A] defendant

can only rebut the presumption by demonstrating that the sentence

is unreasonable when measured against the § 3553(a) factors.”

United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)
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(internal quotation marks and citation omitted), petition for cert.

filed, U.S.L.W. ___ (U.S. July 21, 2006) (No. 06-5439).

Here, the district court sentenced Newkirk post-Booker and

appropriately treated the guidelines as advisory. The record shows

that the court considered Newkirk’s claim that his criminal history

category overstated the seriousness of his past conduct because it

asked the probation officer what Newkirk’s guideline range would be

with lower criminal history categories. Newkirk’s fifty-one-month

prison term is the bottom of the guideline range and is below the

statutory maximum ten-year sentence under 18 U.S.C. § 922(g). We

find that Newkirk has failed to rebut the presumption of

reasonableness accorded to sentences within the properly calculated

guideline range.

Next, Newkirk argues that he is entitled to be

resentenced because the district court failed to comply with 18

U.S.C.A. § 3553(c) (West 2000 & Supp. 2007), which requires

sentencing courts to “state in open court the reasons for [their]

imposition of the particular sentence.” Id. Because Newkirk did

not raise this objection in the district court, we review his claim

for plain error. United States v. Olano, 507 U.S. 725, 733 (1993).

It is undisputed that the court did not state the reasons

for the sentence in open court. However, because we find that

Newkirk has not shown that this error affected his substantial

rights, we conclude that the district court’s omission did not

amount to plain error.
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Accordingly, we affirm Newkirk’s sentence. 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