UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4317

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HOWARD ZERKLE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. William L. Osteen, Senior

District Judge. (1:06-cr-00207-WLO)

Submitted: October 15, 2007 Decided: October 26, 2007

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis,

Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,

United States Attorney, Robert M. Hamilton, Assistant United States

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Howard Zerkle pled guilty pursuant to a plea agreement to

one count of making false statements on a bank loan application, in

violation of 18 U.S.C.A. §§ 1014, 2 (West 2000 & Supp. 2007); money

laundering, in violation of 18 U.S.C. §§ 1957(a), (b), 2 (2000);

and two counts of mail fraud, in violation of 18 U.S.C.A. § 1341

(West Supp. 2007). He was sentenced to sixty-nine months’

imprisonment and three years’ supervised release. The sixty-nine

months was near the middle of the advisory Sentencing Guidelines

range of imprisonment. On appeal, Zerkle contends the sentence is

unreasonable because it is greater than necessary to accomplish the

goals of 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). We

affirm.

We will affirm the sentence imposed by the district court

as long as it is within the statutorily prescribed range and

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

Although the guidelines are no longer mandatory, they must still be

consulted and taken into account when sentencing. United States v.

Booker, 543 U.S. 220, 264 (2005). A sentence within a properly

calculated advisory guideline range is presumptively reasonable.

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

denied, 126 S. Ct. 2309 (2006); see Rita v. United States, 127 S.

Ct. 2456 (2007) (upholding presumption of reasonableness). This

presumption can only be rebutted by showing the sentence is
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unreasonable when measured against the § 3553(a) factors. United

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

denied, 127 S. Ct. 3044 (2007). 

“After Booker, sentencing requires two steps. First, the

district court must consult the Sentencing Guidelines and correctly

calculate the range provided by the Guidelines. Second, the court

must consider this sentencing range along with the other factors

described in 18 U.S.C. § 3553(a) and then impose a sentence.”

United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006) (citations

omitted), petition for cert. filed (June 20, 2006) (No. 05-11659).

“In doing so, the district court should first look to whether a

departure is appropriate based on the Guidelines Manual or relevant

case law.” United States v. Moreland, 437 F.3d 424, 432 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006). “If an appropriate

basis for departure exists, the district court may depart. If the

resulting departure range still does not serve the factors set

forth in § 3553(a), the court may then elect to impose a nonguideline sentence (a ‘variance sentence’).” Id. 

We find the sentence reasonable. Given the seriousness

of the offense, the number of victims involved and the need to

deter others from engaging in the same conduct, Zerkle failed to

rebut the presumption of reasonableness. Accordingly, we affirm

the convictions and sentence. We dispense with oral argument

because the facts and legal contentions are adequately presented in
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the materials before the court and argument would not aid the

decisional process.

AFFIRMED