UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4900

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSHUA MATTHEW MANN,

Defendant - Appellant.

No. 06-5056

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSHUA LEE BARE, a/k/a Trigger,

Defendant - Appellant.
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No. 06-5064

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEFFREY LAMONT ALEXANDER, a/k/a Raven,

Defendant - Appellant.

No. 07-4001

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSEPH WILLIAM ZACAROLO,

Defendant - Appellant.

Appeals from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr., Chief

District Judge. (1:06-cr-00036-JAB-4; 1:06-cr-00036-JAB-3; 1:06-

cr-00036-JAB-2; 1:06-cr-00036-JAB-1)

Submitted: July 18, 2007 Decided: August 2, 2007

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
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Affirmed by unpublished per curiam opinion.

J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North

Carolina; William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North

Carolina; William S. Trivette, Assistant Federal Public Defender,

Greensboro, North Carolina; Bryan E. Gates, Jr., Winston-Salem,

North Carolina, for Appellants. Anna Mills Wagoner, United States

Attorney, Clifton T. Barrett, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to written plea agreements, Appellants Joshua

Matthew Mann, Joshua Lee Bare, Jeffrey Lamont Alexander, and Joseph

William Zacarolo entered pleas of guilty to maliciously damaging

and destroying rental property by means of fire and explosive, 18

U.S.C. § 844(1) and 2; of use of a firearm by discharging, 18

U.S.C. § 924(c)(1)(A)(iii) and 2; and possessing unregistered

firearms, 26 U.S.C. §§ 5861 and 5871, and 18 U.S.C. § 2. The

district court sentenced Mann to 312 months in prison, Bare to 288

months, Alexander to 228 months, and Zacarolo to 268 months. 

Appellants assert (1) the district court erred by

enhancing their sentences based upon uncharged attempted murder,

pursuant to USSG § 2A2.1; (2) the district court erred by not

considering all of the § 3553(a) factors and in imposing severe

sentences; and (3) this Court’s presumption that a sentence within

the guidelines range is reasonable is a return to unconstitutional

mandatory guidelines sentencing. Finding no error, we affirm.

This court reviews the imposition of a sentence for

reasonableness. United States v. Booker, 543 U.S. 200, 260-61

(2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.

2005). After Booker, courts must calculate the appropriate

guidelines range, making any appropriate factual findings. United

States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The court

then should consider the resulting advisory guidelines range in
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conjunction with the factors under 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2006), and determine an appropriate sentence.

Davenport, 445 F.3d at 370. If a court imposes a sentence outside

the guidelines range, the district court must state its reasons for

doing so. Hughes, 401 F.3d at 546. 

Appellants contend that their sentences are unlawful

because the district court made findings by a preponderance of the

evidence that increased their sentences beyond both the conduct

with which they were charged and the facts to which they admitted.

However, this general argument was rejected in Booker. After

Booker, the sentencing court is authorized to make factual findings

in order to appropriately determine the advisory sentencing range

under the guidelines. See Davenport, 445 F.3d at 370; see also

United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998)

(holding that sentencing court may enhance defendant’s sentence

based on its findings of conduct by a preponderance of the

evidence, even when jury acquitted defendant of that conduct).

Under the now advisory sentencing guidelines, these authorized

factual findings would include a finding as to whether the object

of the offense would have constituted first-degree murder. First

degree murder means conduct that, if committed within the special

and territorial jurisdiction of the United States, would constitute

first degree murder under 18 U.S.C. § 1111. Such conduct would
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call for application of the murder guideline, USSG § 2A1.1 (First

Degree Murder). See USSG § 2D1.1(d)(1). 

Under federal law, murder is the unlawful killing of a

human being with malice aforethought, and first degree murder

requires that the murder is willful, deliberate, malicious and

premeditated. Attempt requires a culpable intent to commit the

crime and a substantial step towards its commission. United

States v. Neal, 78 F.3d 901, 906 (4th Cir 1996). A substantial

step requires more than mere preparation. Id. 

The evidence presented at the sentencing hearings

supported the district court’s conclusion by a preponderance of the

evidence that each defendant was involved in the attempted murder

of Castle. The actions and statements of the defendants reflect a

premeditation and deliberate and malicious intentions. The attack

upon Castle’s home was undertaken at night, when Castle was likely

to be home asleep, which would both reduce the likelihood of his

escape and increase the likelihood he would be injured or killed.

In addition, it would be more difficult to apprehend Appellants

under the cover of darkness. Moreover, statements such as they

were headed to Castle’s to “shoot up the place,” indicate an intent

to kill Castle. The fabrication of the Molotov cocktails and the

possession of firearms also demonstrate premeditation. Upon

arriving at Castle’s home, there were cars parked outside, and all

of the lights were off, indicating Castle was at home and asleep.
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The four defendants then either threw the six flammatory devices or

fired rounds of ammunition into the house. Two Molotov cocktails

entered the home. After the six devices were thrown at the home,

Bare shot at the house, demonstrating an intent to light the

cocktails on fire. An examination of the front bedroom determined

that the cocktails and rounds from the firearms caused a fire in

the bedroom occupied by Castle’s guests, the Bowers. Moreover, Ms.

Bowers was struck by a bullet in the back during her attempt to

escape the home with her children. 

While defendants argue they were under the influence of

drugs and alcohol and lacked the ability to form intent to kill and

to premeditate, their actions clearly demonstrate otherwise. The

evidence overwhelmingly supports the district court’s determination

by a preponderance of the evidence that the conduct presented at

sentencing would have supported a conviction for attempted first

degree murder under 18 U.S.C § 1111. The district court thus did

not err in applying the attempted murder cross-reference.

Defendants next assert their sentences are unreasonable

because the district court did not consider each factor in § 3553

and the sentences are more severe than necessary to satisfy the

requirements of § 3553. As discussed above, this court will affirm

a post-Booker sentence if it “is within the statutorily prescribed

range and is reasonable.” United States v. Moreland, 437 F.3d 424,

432-33 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). (internal
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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 need not discuss each factor set

forth in § 3553(a) ‘in checklist fashion;’ ‘it is enough to

calculate the range accurately and explain why (if the sentence

lies outside it) this defendant deserves more or less.’” Moreland,

437 F.3d at 432 (quoting United States v. Dean, 414 F.3d 725, 729

(7th Cir. 2005)). This court has repeatedly held that a sentence

imposed within a properly calculated Guidelines range is presumed

reasonable, and the Supreme Court has upheld this presumption. See

Rita v. United States, 551 U.S.___, 2007 WL 1772146, at *3, *6

(U.S. June 21, 2007), (No. 06-5754).

The district court specifically stated that after

considering the guidelines ranges and the § 3553 factors, the

guidelines ranges were appropriate for fashioning a sentence in

each of the four cases. The court looked at prior criminal records

and recidivism, substance abuse and psychiatric issues, lack of

work history, and educational history. Because the district court

adequately explained the basis for its sentencing decision and

considered the defendants’ arguments, the § 3553(a) factors, and

the cross-reference for murder enhancement, and because the

sentences were within the properly calculated advisory guidelines

range, we conclude the Appellants’ sentences are reasonable. 
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Finally, Appellants argue that this circuit’s presumption

that a sentence within the guidelines range is reasonable is an

unconstitutional return to mandatory guidelines sentencing. As

previously noted, the Supreme Court recently upheld our

reasonableness presumption for sentencing within a properly

calculated guidelines range. See Rita, 551 U.S. at ___, 2007

WL1772146, at *3, *6. 

Accordingly, we affirm each Appellant’s conviction and

sentence. We deny counsel’s motion to withdraw. 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