UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4743

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KENNETH WAYNE SHARPE,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 07-6561)

Submitted: May 6, 2008 Decided: June 3, 2008

Before MICHAEL, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,

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

Attorney, Douglas Cannon, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

This case is before the court on remand from the United

States Supreme Court. Pursuant to a plea agreement, Kenneth Wayne

Sharpe pled guilty to one count of possession of child pornography

which had been transported in interstate and foreign commerce, in

violation of 18 U.S.C.A. § 2252A(a)(5)(B), (b)(2) (West 2000 &

Supp. 2007). Sharpe sought a sentence of house arrest because he

has cancer. The district court sentenced Sharpe to sixty-three

months in prison, the bottom of the advisory Guidelines range. We

affirmed Sharpe’s sentence. United States v. Sharpe, 241 F. App’x

131 (4th Cir. 2007). The Supreme Court vacated our judgment and

remanded the case for further consideration in light of Gall v.

United States, 128 S. Ct. 586 (2007). Sharpe v. United States, 128

S. Ct. 877 (2008). After reviewing Sharpe’s sentence as directed,

we affirm. 

In sentencing a defendant after United States v. Booker,

543 U.S. 220 (2005), a district court must correctly calculate the

appropriate advisory Guidelines range. Gall, 128 S. Ct. at 596

(citing Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). The

court then must consider that range in conjunction with the 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2007) factors. Gall, 128 S.

Ct. at 596. In determining an appropriate sentence, the district

court “may not presume that the Guidelines range is reasonable,”

but rather “must make an individualized assessment based on the

facts presented.” Id. at 596-97. 
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This court reviews the sentence imposed by the district

court for abuse of discretion. Id. at 597; see also United States

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We first must ensure

that the district court committed no procedural error, such as

“failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence--including an explanation for any deviation from the

Guidelines range.” Gall, 128 S. Ct. at 597. 

If there are no procedural errors, we then consider the

substantive reasonableness of the sentence. Id. “Substantive

reasonableness review entails taking into account the ‘totality of

the circumstances, including the extent of any variance from the

Guidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall, 128 S.

Ct. at 597). 

With these standards in mind, we find no abuse of

discretion by the district court. The court followed the necessary

procedural steps in sentencing Sharpe, properly calculating the

Guidelines range and considering that recommendation in conjunction

with the § 3553(a) factors. We also find that the district court

meaningfully articulated its consideration of the § 3553(a) factors

and its decision to sentence Sharpe within the Guidelines range.

Accordingly, having considered Sharpe’s sentence in light

of Gall, we affirm. We dispense with oral argument because the

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

decisional process

AFFIRMED