UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4532

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CALVIN WATTY DRIVER,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Bryson City. Graham C. Mullen,

Senior District Judge. (2:05-cr-00217)

Submitted: March 27, 2008 Decided: April 14, 2008

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

R. Edward Hensley, Jr., Maggie Valley, 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Calvin Watty Driver appeals his sentence for aggravated

sexual abuse in Indian country, in violation of 18 U.S.C.

§§ 2241(a), 1153 (2000). Driver argues that the district court did

not adequately state its reasons for imposing his sentence because

it did not specifically discuss the factors enumerated in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), and that the district

court erred in enhancing his sentence based upon facts that were

determined by the court to be proven by a preponderance of the

evidence. We affirm.

On a rainy morning in July 2005, Driver was walking on

the side of a road in the Eastern Band of Cherokee Indian

Reservation in North Carolina. The victim, who knew Driver, was

driving to work and stopped to give Driver a ride to his father’s

residence. Driver told the victim that he had been up all night

drinking alcohol. When they arrived at the residence, Driver held

an open knife to the victim’s throat and forced her to leave her

vehicle and walk into the woods with him. Driver then forced her

back to the vehicle and made her lie down in the back seat. He

kept the knife pointed at her while he drove away from the

residence. Driver stopped the vehicle, got into the back seat, and

forced the victim to remove her clothes and engage in vaginal

intercourse with him.
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After driving around a little more, Driver again forced

the victim to engage in vaginal intercourse with him. Afterward,

Driver and the victim were both in the front seat with the knife

between them, and the victim grabbed the knife, jumped out of the

moving vehicle, and threw the knife into the woods. Driver stopped

and got out to look for the knife, and the victim got into the

driver’s seat and attempted to drive away. However, Driver came

back, forced her back to the passenger’s seat, drove to another

residence, and exited the vehicle. The victim drove to her place

of employment and contacted law enforcement officials.

The base offense level for Driver’s conduct, pursuant to

U.S. Sentencing Guidelines Manual (“USSG”) § 2A3.1 (2005), was

level 30. The probation officer who prepared Driver’s Presentence

Investigation Report recommended a four-level enhancement pursuant

to § 2A3.1(b)(1) because Driver pointed a knife at the victim

before, during, and after the aggravated sexual assault, and that

conduct constituted a threat of death or serious bodily injury as

described in 18 U.S.C. § 2241(a)(2). The officer also recommended

a four-level enhancement pursuant to § 2A3.1(b)(5) because Driver

abducted the victim by forcing her back to the passenger side of

the car after she attempted to escape by driving away. With the

enhancements, Driver’s total offense level was 38. Based upon that

offense level and Driver’s criminal history category of IV, the

guidelines range for his sentence was 324 to 405 months’
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imprisonment. The probation officer did not recommend any

departure or variance from the guidelines range.

Driver objected to the enhancements, arguing that they

were based upon facts that were not admitted by him, submitted to

the jury, or found by the jury beyond a reasonable doubt, in

violation of his rights under the Sixth Amendment of the United

States Constitution. The Government responded to Driver’s

objections, arguing that enhancements based upon facts not

submitted to a jury and proven beyond a reasonable doubt do not

violate the Sixth Amendment under the advisory guidelines

sentencing scheme adopted by the Supreme Court in United States v.

Booker, 543 U.S. 220 (2005). At Driver’s sentencing hearing, the

district court adopted the findings in the PSR, finding that the

Government’s response to Driver’s objections was correct. The

court stated, “I don’t see anything in here, either briefed or

otherwise, that invokes [18 U.S.C.A. §] 3553(a) and the factors

there, and I don’t see anything in those factors that’s not already

considered in the Guidelines.” Driver argued through counsel that

his age and family responsibilities entitled him to a more lenient

sentence, but the district court found that the evidence and

arguments presented did not justify a sentence below the guidelines

range. The court sentenced Driver to 324 months’ imprisonment, at

the low end of the guidelines range. Driver noted a timely appeal.
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We review a sentence to determine whether it is

reasonable, applying an abuse of discretion standard. Gall v.

United States, 128 S. Ct. 586, 596 (2007). If the sentence is

within the guidelines range, we may presume that it is reasonable.

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). A

district court must explain the sentence it imposes sufficiently

for this court to effectively review its reasonableness, but need

not mechanically discuss all the factors listed in § 3553(a).

United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006).

The court’s explanation should indicate that it considered the

§ 3553(a) factors and the arguments raised by the parties. Id. We

do not evaluate the adequacy of the district court’s explanation

“in a vacuum,” but also consider “[t]he context surrounding a

district court’s explanation.” Id. at 381. 

Driver was sentenced at the low end of the guidelines

range for his offense, and, therefore, we may presume that his

sentence is reasonable. Although the district court did not

discuss individual § 3553(a) factors at sentencing, the court

indicated that it considered the guidelines advisory, heard

argument regarding the § 3553(a) factors, and found that the facts

and arguments presented did not justify a sentence below the

guidelines range. We conclude that the district court adequately

considered the § 3553(a) factors in stating its reasons for

Driver’s sentence.
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After the Supreme Court’s decision in 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). Under an advisory guidelines scheme, a district court does

not violate the Sixth Amendment by making factual findings as to

sentencing factors by a preponderance of the evidence as long as

the fact-finding does not enhance the sentence beyond the maximum

term specified in the substantive statute. See United States v.

Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding that “Booker does

not in the end move any decision from judge to jury, or change the

burden of persuasion”). 

In this case, the district court enhanced Driver’s

guidelines sentence based upon facts that were not found by a jury

beyond a reasonable doubt, but that were found by the district

court judge by a preponderance of the evidence. Because the court

treated the guidelines as advisory pursuant to Booker, the

enhancement did not violate Driver’s Sixth Amendment rights.

We affirm Driver’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