UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4918

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

AGNES HOLBROOK,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Big Stone Gap. James P. Jones, Chief

District Judge. (2:01-cr-10023-jpj)

Submitted: May 23, 2007 Decided: June 18, 2007

Before WILLIAMS, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sol Z. Rosen, Washington, D.C., for Appellant. John L. Brownlee,

United States Attorney, Jennifer R. Bockhorst, Assistant United

States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*Holbrook was convicted of possession of a firearm by a person

convicted of a misdemeanor crime of domestic violence, in violation

of 18 U.S.C. § 922(g)(9) (2000), and making false statements to a

firearms dealer in connection with the purchase of a firearm, in

violation of 18 U.S.C. § 922(g)(6) (2000).

- 2 -

PER CURIAM:

Agnes Holbrook appeals the sentence imposed following

remand for resentencing. Initially, we affirmed Holbrook’s

convictions* and sentence. United States v. Holbrook, 368 F.3d 415

(4th Cir. 2004). The Supreme Court subsequently vacated this

court’s judgment and remanded the case for further consideration in

light of United States v. Booker, 543 U.S. 220 (2005). Holbrook v.

United States, 545 U.S. 1125 (2005). We then vacated Holbrook’s

sentence and remanded for resentencing pursuant to Booker and

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). United

States v. Holbrook, 178 F. App’x 312 (4th Cir. 2006) (No. 02-4844),

cert. denied, 127 S. Ct. 745 (2006).

On remand, the district court utilized the same guideline

calculations that were applied at Holbrook’s initial sentencing--a

total offense level of thirty-five and criminal history category I,

resulting in a sentencing guideline range of 168 to 210 months’

imprisonment. The district court sentenced Holbrook to 210 months

in prison. Holbrook timely appealed. We affirm.

Holbrook argues that her sentence violates her Sixth

Amendment rights because it is based on facts not found by the jury

or admitted by her, and that the district court failed to comply

with this court’s mandate for resentencing. Contrary to Holbrook’s

assertion, our opinion did not prescribe the sentencing range to be
- 3 -

used on remand. Our specific guidance to the district court was

stated as follows:

On remand, the district court should first determine the

appropriate sentencing range under the guidelines, making

all factual findings appropriate for that determination.

Hughes, 401 F.3d at 546. The court should consider this

sentencing range along with the other factors described

in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 200[7]), and

then impose a sentence. 

Holbrook, 178 F. App’x at 314. The district court fully complied

with this mandate.

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

range prescribed by the sentencing guidelines. Hughes, 401 F.3d at

546. However, in imposing a sentence post-Booker, courts still

must calculate the applicable guideline range after making the

appropriate findings of fact and must consider the range in

conjunction with other relevant factors under the guidelines and 18

U.S.C.A. § 3553(a). United States v. Moreland, 437 F.3d 424, 432

(4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). This court will

affirm a post-Booker 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 Holbrook only after considering the

sentencing guidelines and the § 3553(a) factors. Although the

district court did not recite facts to support each § 3553(a)

factor, the court need not “robotically tick through § 3553(a)’s
- 4 -

every subsection” or “explicitly discuss every § 3553(a) factor on

the record.” Johnson, 445 F.3d at 345. Thus, the Sixth Amendment

error that occurred at the first sentencing was cured by Holbrook’s

resentencing under an advisory guideline scheme.

Holbrook next argues that the presumption of

reasonableness this court affords sentences within the properly

calculated guideline range, by virtue of its decision in United

States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S.

Ct. 2309 (2006), is unconstitutional and amounts to a de facto

mandatory guideline scheme. However, “a panel of this court cannot

overrule, explicitly or implicitly, the precedent set by a prior

panel of this court. Only the Supreme Court or this court sitting

en banc can do that.” Scotts Co. v. United Indus. Corp., 315 F.3d

264, 271-72 n.2 (4th Cir. 2002) (internal quotation marks and

citation omitted). 

For these reasons, we affirm Holbrook’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