UNPUBLISHED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.

Appeal from the United States District Court for the Middle

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

District Judge. (1:05-cr-00292-JAB)

Submitted: June 27, 2007 Decided: July 13, 2007

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Vacated by Supreme Court, January 7, 2008
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PER CURIAM:

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 guideline range. Sharpe timely

appealed his sentence.

It is well established in this circuit that a sentence

imposed within a properly calculated guideline range is presumed to

be reasonable. See, e.g., United States v. Montes-Pineda, 445 F.3d

375, 379 (4th Cir.), petition for cert. filed, ___ U.S.L.W. ___

(U.S. July 21, 2006) (No. 06-5439), United States v. Johnson, 445

F.3d 339, 341-42 (4th Cir. 2006); United States v. Moreland, 437

F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006);

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

126 S. Ct. 2309 (2006). Sharpe claims that this presumption of

reasonableness is unconstitutional because it renders the

guidelines mandatory by placing greater emphasis on the guidelines

than on other sentencing factors. This argument is foreclosed by

the Supreme Court’s decision in Rita v. United States, ___ U.S.L.W.

___, ___, 2007 WL 1772146, *3, *6 (U.S. June 21, 2007) (No. 06-

5754). 

Sharpe also argues that his sentence was unreasonable

because it was greater than necessary to comply with the purpose of
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18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). In imposing a

sentence, a court must calculate the applicable guideline range

after making the appropriate findings of fact and must consider the

range in conjunction with other relevant factors under the

guidelines and 18 U.S.C.A. § 3553(a). Moreland, 437 F.3d at 433.

“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.’” Id. at 432 (quoting United

States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)); see also Rita,

___ U.S.L.W. at ___, 2007 WL 1772146, at *12-*13. 

Here, the district court appropriately treated the

guidelines as advisory. Sharpe agreed that his advisory guideline

range was sixty-three to seventy-eight months’ imprisonment, but

asked for a sentence of house arrest. The court considered the

guideline range and the factors in § 3553(a) before imposing a

sixty-three month prison term, a sentence at the bottom of the

guideline range and below the statutory maximum ten-year prison

sentence under 18 U.S.C.A. § 2252(a)(5)(B). Despite Sharpe’s

contention that his cancer diagnosis warrants a lower sentence,

neither Sharpe nor the record suggests any information so

compelling as to rebut the presumption that a sentence within the

properly calculated guideline range is reasonable.

Accordingly, we affirm Sharpe’s sentence. We dispense

with oral argument because the facts and legal contentions are
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adequately presented in the materials before the Court and argument

would not aid the decisional process.

AFFIRMED