UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5050

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DANIEL DERILL SUTTON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (CR-05-27)

Submitted: September 27, 2006 Decided: December 1, 2006

Before WILLIAMS, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Vidalia Patterson, Research and

Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.

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Unpublished opinions are not binding precedent in this circuit.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

Daniel Derill Sutton pled guilty to possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was

sentenced to a term of 120 months imprisonment. The 120-month term

was both the statutory maximum and the bottom of the advisory

guideline range of 120-150 months. Sutton contends on appeal that

his sentence is unreasonable because he obtained no benefit from

his three-level adjustment for acceptance of responsibility. U.S.

Sentencing Guidelines Manual § 3E1.1 (2004). We affirm.

After the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), before imposing a sentence, a district

court must correctly determine the guideline range, determine

whether a sentence within the range serves the statutory purposes

set out in § 3553(a) and, if not, select a sentence within the

statutory maximum that serves those purposes. United States v.

Perez-Pena, 453 F.3d 236, 241 (4th Cir. 2006). A sentence imposed

within a correctly computed guideline range is presumptively

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

cert. denied, 126 S. Ct. 2309 (2006). A sentence may be

unreasonable if (1) it was not “selected pursuant to a reasoned

process in accordance with law,” (2) gives excessive weight to a
*

The government argues that the plain error standard of review

applies because Sutton did not request a departure to reward him

for accepting responsibility. However, the only claim of error

Sutton makes on appeal is that the sentence was unreasonable.

Thus, the reasonableness standard applies. The government also

argues that the district court’s decision not to depart is not

reviewable. However, this court has held that a sentencing court’s

decision not to depart below the advisory guideline range is

reviewed for reasonableness. United States v. Montes-Pineda, 445

F.3d 375, 377-78 (4th Cir. 2006), petition for cert. filed, __

U.S.L.W. (U.S. July 21, 2006) (No. 06-5439).

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relevant factor, or (3) is not “fair and just . . . in light of the

relevant facts and law.” Id.*

Sutton does not dispute that the district court correctly

calculated his guideline range. He received the benefit of his

acceptance of responsibility to the extent contemplated under the

guidelines. Had the court begun the adjustment at 120 months,

Sutton would have been rewarded twice for acceptance of

responsibility, because the 120-150 range already included an

adjustment under § 3E1.1. The record here reveals that the

district court understood its authority to depart downward or

impose a variance sentence, but showed no desire to do so. Because

the court properly calculated and considered the advisory guideline

range and weighed the relevant § 3553(a) factors, we conclude that

the sentence was reasonable. 

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED