UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4916

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRYAN TERRELL DIXON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle,

District Judge. (5:05-cr-00210-BO-3)

Submitted: April 26, 2007 Decided: April 30, 2007

Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. George E.B. Holding, United States Attorney, Anne M.

Hayes, Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*

Dixon received no criminal history points for a 2003 incident

in which he shot at police officers who were called to a party

where a friend of his was injured. Although charges were filed,

Dixon was released on bond and temporarily left the state. The

pending charges were dismissed when Dixon was charged with the

instant offenses.

- 2 -

PER CURIAM:

Bryan Terrell Dixon pled guilty to one count of

conspiracy to make false statements to licensed firearms dealers in

connection with the acquisition of firearms, 18 U.S.C. § 371 (2000)

(Count One), and possession of a firearm after conviction of a

felony, 18 U.S.C. § 922(g)(1) (2000) (Count Six). Over Dixon’s

objection, the district court applied a cross reference from U.S.

Sentencing Guidelines Manual § 2K2.1(c) (2005) to USSG § 2A2.2

(Aggravated Assault). Then, finding that criminal history category

III did not adequately represent Dixon’s prior criminal conduct,*

USSG § 4A1.3, p.s., the district court departed upward to category

IV and imposed a sentence of 115 months imprisonment. Dixon

contends on appeal that the sentence is unconstitutional because he

was sentenced under a de facto mandatory guideline system. In

consequence, he contends, the district court’s factual findings

concerning the offense level and upward departure rendered the

sentence unreasonable. We affirm.

Because Dixon did not raise this issue in the district

court, our review is for plain error. United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005). In sentencing a defendant after
- 3 -

United States v. Booker, 543 U.S. 220 (2005), the district court

must calculate the advisory guideline range and then consider

whether that range “serves the factors set forth in [18 U.S.C.A.]

§ 3553(a) [West 2000 & Supp. 2006)] and, if not, select a sentence

that does serve those factors.” United States v. Green, 436 F.3d

449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). This

court reviews a post-Booker sentence “to determine whether the

sentence is within the statutorily prescribed range and is

reasonable.” United States v. Moreland, 437 F.3d 424, 433 (4th

Cir.) (internal quotation marks and citation omitted), cert.

denied, 126 S. Ct. 2054 (2006). 

“[A] sentence within the proper advisory Guidelines range

is presumptively reasonable.” United States v. Johnson, 445 F.3d

339, 341 (4th Cir. 2006) (citations omitted). However, “a

defendant can only rebut the presumption by demonstrating that the

sentence is unreasonable when measured against the § 3553(a)

factors.” United States v. Montes-Pineda, 445 F.3d 375, 379 (4th

Cir. 2006) (internal quotation marks and citation omitted),

petition for cert. filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No.

06-5439). A sentence outside the guideline range is not

presumptively unreasonable. Green, 436 F.3d at 457. However, the

further the sentencing court diverges from the guidelines, the more

compelling the reasons for the divergence must be. Moreland, 437

F.3d at 434. 
- 4 -

In light of our precedents, we find no merit in Dixon’s

claim that our standard of review renders the guidelines per se

mandatory, or that his sentence was unreasonable because the

district court made factual findings in determining the advisory

guideline range and deciding to depart. We further conclude that

the court acted reasonably in departing upward to category IV. See

United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.

2007).

We therefore affirm the sentence imposed by the district

court. 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