UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4021

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANDRE ORANGE, a/k/a Dre,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Henry E. Hudson, District

Judge. (3:06-cr-00257-HEH)

Submitted: May 23, 2007 Decided: August 27, 2007

Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Esther J. Windmueller, Richmond, Virginia; Muriel-Theresa Pitney,

THE LAW OFFICE OF MURIEL PITNEY, PLC, Richmond, Virginia, for

Appellant. Chuck Rosenberg, United States Attorney, Roderick C.

Young, Assistant United States Attorney, Richmond, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A jury found Andre Orange guilty of one count of

influencing a prospective witness to provide false testimony, in

violation of 18 U.S.C. §§ 1512(b)(3), 2 (2000). He was acquitted

of the charge of being an accessory-after-the-fact to a murder. On

appeal, Orange claims the district court erred by not incorporating

his proposed affirmative defense instruction into the jury

instructions. He also claims the district court should have

imposed a variant sentence because the advisory guidelines sentence

was based in part on acquitted conduct. We affirm.

Because Orange did not object to the district court’s

jury instructions, we review for plain error. United States v.

Nicolaou, 180 F.3d 565, 569 (4th Cir. 1999). Under the plain error

standard, Orange must show: (1) there was error; (2) the error was

plain; and (3) the error affected his substantial rights. United

States v. Olano, 507 U.S. 725, 732-34 (1993). When these

conditions are satisfied, we may exercise our discretion to notice

the error only if the error “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Id. at

736 (internal quotation marks omitted). The burden of showing

plain error is on the defendant. United States v. Strickland, 245

F.3d 368, 379-80 (4th Cir. 2001). Orange failed to show the

alleged error was obvious or that his substantial rights were
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affected by the alleged error. As a result, there was no plain

error. 

With respect to the sentence, we note there was no error

in considering acquitted conduct in determining the sentence under

the advisory guidelines. United States v. Williams, 399 F.3d 450,

454 (2d Cir. 2005); United States v. Romulus, 949 F.2d 713, 716-17

(4th Cir. 1991). We review a post-United States v. Booker, 543

U.S. 220 (2005) 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.), cert. denied, 126

S. Ct. 2054 (2006) (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). “[A] defendant can only rebut the presumption

by demonstrating that the sentence is unreasonable when measured

against the [18 U.S.C.] § 3553(a) factors.” United States v.

Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal

quotation marks and citation omitted), petition for cert. filed, __

U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439). While a district

court must consider the various § 3553(a) factors and explain its

sentence, it need not explicitly reference § 3553 or discuss every

factor on the record. Johnson, 445 F.3d at 345. This is

particularly the case when the court imposes a sentence within the

applicable guideline range. Id. 
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We find Orange’s sentence was reasonable and there was no

error in the district court’s decision to deny his request for a

variant sentence. 

Accordingly, we affirm the conviction and 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