UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4642

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TONY ANTHONY HEARNE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

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

District Judge. (1:03-cr-00217-WLO)

Submitted: July 31, 2008 Decided: August 25, 2008

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

Judge.

Affirmed by unpublished per curiam opinion.

J. David James, SMITH JAMES ROWLETT & COHEN, L.L.P., Greensboro,

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

Attorney, Michael F. Joseph, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Tony Anthony Hearne appeals the 172-month sentence he

received after his case was remanded for resentencing in light of

United States v. Booker, 125 S. Ct. 738 (2005). We affirm.

Hearne first maintains that the rule of this circuit

which affords a rebuttable presumption of reasonableness to a

sentence within a correctly calculated guideline range effectively

reinstates the mandatory guideline scheme and is thus contrary to

Booker and unreasonable. This is an untenable position after Rita

v. United States, 127 S. Ct. 2456, 2462-69 (2007), which upheld our

presumption of reasonableness for a within-guidelines sentence. 

Hearne’s two counts of conviction were grouped together

for sentencing purposes under U.S. Sentencing Guidelines Manual

§ 3D1.1(c) (2005). Hearne did not previously challenge the

grouping of the two counts, but now claims that Count Three was the

most serious offense because it had a higher statutory maximum than

Count One, and thus should have been used as the offense level for

the group. He relies on United States v. Brinton, 139 F.3d 718,

722 (9th Cir. 1998), overruled on other grounds by United States v.

Nordby, 225 F.3d 1053 (9th Cir. 2000), overruled on other grounds

by United States v. Buckland, 289 F.3d 558 (9th Cir. 2002).

However, to the extent that Brinton constitutes a ruling on the

issue, and not mere dicta, its reasoning has been rejected by three

circuits. See United States v. Eversole, 487 F.3d 1024, 1032-34
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(6th Cir.), cert. denied, 128 S. Ct. 649 (2007); United States v.

Evans, 318 F.3d 1011, 1020 (10th Cir. 2003); United States v.

Kroeger, 229 F.3d 700, 703 (8th Cir. 2000). Moreover, because

Hearne failed to raise this issue in his prior appeal, he has

forfeited review of the issue under the mandate rule. United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).

Hearne filed a pro se motion for a downward departure

before he was sentenced. Although the district court assured

Hearne before imposing sentence that it had read everything he

filed, Hearne maintains that the court did not consider the reasons

for a downward departure he set out in his motion, as evidenced by

the court’s failure to discuss most of the arguments he made in

favor of a departure. This court lacks the authority to review the

district court’s decision to deny Hearne the departure he

requested. United States v. Brewer, 520 F.3d 367, 371-72 (4th Cir.

2008). However, a failure to consider the 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2008) factors would constitute a procedural

error. Gall v. United States, 128 S. Ct. 586, 597 (2007).

Nevertheless, “where judge and Commission both determine that” a

guideline sentence is appropriate, “that sentence likely reflects

the § 3553(a) factors.” Rita, 127 S. Ct. at 2467. 

Here, the district court decided that a sentence within

the guideline range of 140-175 months was not excessive in light of

the § 3553(a) factors and Hearne’s “record of continuous assaults,
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[and] the likelihood of continued criminal activity . . . .” The

court also stated that § 3553 required a sentence “at least equal

to that which is set forth in the Sentencing Guidelines,” because

of the likelihood that Hearne would commit future crimes, the

necessity of protecting the public, and the principle of

deterrence. We are satisfied that no error occurred.

In his first appeal, Hearne contested the district

court’s factual finding that, in addition to the Ruger revolver

charged in the indictment, he had possessed two additional

firearms. This court upheld the district court’s determination

that government witness David Horne was credible when he testified

at sentencing that Hearne threatened him with two guns with an

ammunition clip, which he described first as a Mac 9 and a Mac 10,

and later as “Uzi-like.” At the resentencing, after Hearne’s

testimony, the district court again found that the base offense

level was appropriately enhanced. 

Hearne argues that the district court’s finding was

erroneous because it was based on unreliable information. See USSG

§ 6A1.3(a), p.s. However, the district court’s credibility

findings are not reviewable on appeal. See United States v.

Locklear, 829 F.2d 1314, 1317 (4th Cir. 1987). We conclude that

the district court did not clearly err in reaching the same

conclusion it did at the first sentencing.
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Last, Hearne argues that the district court erred in

denying his motion to withdraw his guilty plea. Hearne did not

contest the validity of his guilty plea in his first appeal, and

only moved to withdraw his guilty plea after his case was remanded.

Hearne’s challenge to the validity of his guilty plea is not

properly before this court. We previously upheld his conviction,

and his case was remanded for resentencing under Booker only. His

attempt to relitigate the validity of his guilty plea is beyond the

scope of the remand order. See Bell, 5 F.3d at 66-67. Therefore,

we decline to consider his claim that the district court abused its

discretion in denying the motion.

We affirm the sentence imposed by the district court. We

deny Hearne’s motion for leave to file a pro se supplemental brief.

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