UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4190

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARVIN BELL JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. W. Earl Britt, Senior

District Judge. (5:06-cr-00178-BR-1)

Submitted: August 29, 2007 Decided: September 26, 2007

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. George E. B. Holding, United States Attorney, Anne M.

Hayes, Banumathi Rangarajan, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: 

On November 28, 2005, North Carolina State Highway Patrol

Trooper J.C. Horniak stopped a vehicle in Cumberland County, North

Carolina. Inside the vehicle were Marvin Bell Johnson and his

girlfriend, Nichelle Renia Steele. Trooper Horniak asked Johnson

for his license. Johnson told the trooper that his license was in

the trunk. As Johnson stepped out of the vehicle, supposedly to

retrieve his license, he picked up a .45 caliber handgun he had

hidden under the driver’s floor mat.

As Johnson approached the rear of the car, he removed the

handgun and began shooting at Trooper Horniak. Johnson fired a

total of seven shots at Horniak, striking him six times. An

eyewitness to the shooting called 911; Horniak survived. Johnson

was subsequently arrested at a Super 8 Motel in Fayetteville, North

Carolina. In Johnson’s hotel room, police recovered the gun used

by Johnson. 

A grand jury charged Johnson with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2000). Johnson pled guilty without the benefit of a plea

agreement. 

After Johnson’s guilty plea, the probation office

prepared a presentence investigation report. In the report, the

probation officer noted that the guideline generally applicable to

a violation of § 922(g)(1) was U.S. Sentencing Guidelines Manual
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§ 2K2.1(a)(4) (2006), which called for a base offense level of 20.

However, the probation officer concluded that, pursuant to the

cross-reference in § 2K2.1(c)(1), the appropriate guideline was the

guideline for attempted murder in § 2A2.1. The probation officer

then determined that the appropriate base offense level was 33, as

the object of the offense would have constituted first degree

murder. The officer then recommended a four level increase under

§ 2A2.1(b)(1)(A) because the victim sustained permanent or lifethreatening injuries. The probation officer then recommended a

six-level increase for Johnson’s knowledge that he assaulted a law

enforcement officer during the course of the offense in a manner

that created substantial risk of bodily injury. The probation

officer finally recommended a three-level reduction for acceptance

of responsibility, for a total offense level of 40. 

Johnson’s prior criminal record included convictions for

second degree murder, using a firearm in a threatening manner while

committing murder, failing to appear for a scheduled court

proceeding, and misdemeanor assault and battery. Johnson’s prior

convictions resulted in a total of five criminal history points.

Two additional points were added because Johnson committed the

current offense while on parole. Johnson’s total criminal history

score placed him in a criminal history category of IV. Johnson’s

resulting advisory guidelines range was 360 months to life
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imprisonment. However, due to the statutory maximum of ten years,

the guidelines range was 120 months. U.S.S.G. § 5G1.1(a). 

The district court sentenced Johnson to 120 months’

imprisonment. Johnson timely noted an appeal; he argues on appeal

that his sentence was unreasonable because his advisory guidelines

range was established by uncharged conduct. For the reasons that

follow, we affirm. 

A sentencing court may rely on uncharged facts in

determining an appropriate sentence within the statutory range.

United States v. Booker, 543 U.S. 220, 233 (2005). After Booker,

a sentencing court continues to make those factual findings

concerning sentencing factors by a preponderance of the evidence.

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert.

denied, 127 S. Ct. 121 (2006). Moreover, long-standing authority

has permitted the sentencing court to consider any evidence at

sentencing that “has sufficient indicia of reliability,” see

U.S.S.G. § 6A1.3(a), including “conduct underlying [an] acquitted

charge, so long as that conduct has been proved by a preponderance

of the evidence.” United States v. Watts, 519 U.S. 148, 156-67

(1997) (per curiam); United States v. Montgomery, 262 F.3d 233, 249

(4th Cir. 2001). 

Here, the relevant guidelines range was the statutory

maximum provided by 18 U.S.C. § 922(g). See United States v.

Hughes, 401 F.3d 540, 545-46 (4th Cir. 2005). Johnson’s sentence
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fell within the statutory maximum of ten years imprisonment, and

therefore, the district court’s factual determinations by a

preponderance of the evidence in calculating Johnson’s advisory

guidelines range did not violate his Fifth and Sixth Amendment

rights. Apprendi v. New Jersey, 530 U.S. 466 (2000); Morris, 429

F.3d at 72. 

Additionally, Johnson’s sentence was procedurally and

substantively reasonable. Following Booker, this court reviews a

sentence for reasonableness. Booker, 543 U.S. 220; Hughes, 402

F.3d at 546-47. In imposing sentence after Booker, sentencing

courts must calculate the appropriate advisory guidelines range by

making any necessary factual findings. United States v. Moreland,

436 F.3d 424, 432 (4th Cir. 2006). The court should then consider

the resulting advisory guidelines range in conjunction with the

factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007)

and determine an appropriate sentence. United States v. Davenport,

445 F.3d 366, 370 (4th Cir. 2006). A sentence within a properly

calculated advisory guidelines range is presumptively reasonable.

Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007). 

The district court properly determined Johnson’s advisory

guidelines range. Moreover, Johnson’s sentence was substantively

reasonable. In the course of illegally possessing a firearm,

Johnson shot a North Carolina State Trooper multiple times,
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inflicting life-threatening injuries on him. Also, as noted above,

Johnson’s criminal history includes numerous serious offenses. 

Accordingly, we affirm the judgment of the district

court. We dispense with oral argument as the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process. 

AFFIRMED