UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4526

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

STEVEN RAY RICKS,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Bryson City. Lacy H. Thornburg,

District Judge. (2:03-cr-00086-LHT)

Submitted: May 23, 2007 Decided: July 12, 2007

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

David G. Belser, BELSER & PARKE, Asheville, North Carolina, for

Appellant. Gretchen C. F. Shappert, United States Attorney,

Charlotte, North Carolina, Amy E. Ray, Assistant United States

Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*

U.S. Sentencing Guidelines Manual (2003).

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PER CURIAM:

Steven Ray Ricks appeals the sentence imposed following

remand for resentencing. In our prior decision, we affirmed

Ricks’s convictions of two counts of aggravated sexual abuse of a

minor in violation of 18 U.S.C.A. §§ 1152, 2241(c) (West 2000 &

Supp. 2007), but vacated Ricks’s sentence and remanded for

resentencing pursuant to United States v. Booker, 543 U.S. 220

(2005). United States v. Ricks, 166 F. App’x 37 (4th Cir. 2006).

On remand, the district court utilized the same

Guidelines* calculations that were applied at Ricks’s initial

sentencing — a total offense level of thirty-five, criminal history

category I, and a sentencing range of 168 to 210 months. At the

resentencing hearing, Ricks continued his objection to the twolevel enhancement imposed pursuant to USSG § 2A3.1(b)(3)(A) based

on his role as the victim’s caregiver. The district court

overruled Ricks’s objection and sentenced Ricks to 180 months’

imprisonment. Ricks timely appealed. We affirm.

On appeal, Ricks asserts that the district court violated

his Sixth Amendment rights in imposing the two-level enhancement

because the facts supporting it were neither alleged in the

indictment nor found by the jury. Ricks does not challenge the

accuracy of the district court’s factual findings and resultant

Guidelines determinations. In our earlier consideration of his
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sentence, we specifically rejected Ricks’s assertion that the facts

supporting this enhancement must be alleged in the indictment.

Ricks, 166 F. App’x at 39 n.*.

After Booker, a district court is no longer bound by the

range prescribed by the Sentencing Guidelines. United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in imposing a

sentence post-Booker, courts still must calculate the applicable

Guidelines range after making the appropriate findings of fact and

consider the range in conjunction with other relevant factors under

the Guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).

United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.

denied, 126 S. Ct. 2054 (2006). This court will affirm a postBooker sentence if it “is within the statutorily prescribed range

and is reasonable.” Id. at 433 (internal quotation marks and

citation omitted). “[A] sentence within the proper advisory

Guidelines range is presumptively reasonable.” United States v.

Johnson, 445 F.3d 339, 341 (4th Cir. 2006). 

The district court explicitly treated the Guidelines as

advisory, and sentenced Ricks only after considering the Sentencing

Guidelines, the § 3553(a) factors, and counsel’s arguments.

Although the district court did not recite facts to support each

§ 3553(a) factor, the court need not “robotically tick through

§ 3553(a)’s every subsection” or “explicitly discuss every

§ 3553(a) factor on the record.” Johnson, 445 F.3d at 345. Thus,
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the Sixth Amendment error that occurred at the first sentencing was

cured by Ricks’s resentencing under an advisory Guidelines scheme.

We also conclude that Ricks’s sentence is reasonable.

We therefore affirm Ricks’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