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United States v. Vittitoe, 06-4688 (2007)

Court: Court of Appeals for the Fourth Circuit Number: 06-4688 Visitors: 23
Filed: Feb. 05, 2007
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4688 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JAMES ANTHONY VITTITOE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Chief District Judge. (1:05-cr-00264-NCT) Submitted: January 17, 2007 Decided: February 5, 2007 Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublis
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                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4688



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES ANTHONY VITTITOE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (1:05-cr-00264-NCT)


Submitted:   January 17, 2007             Decided:   February 5, 2007


Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Harry L.
Hobgood, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              James Anthony Vittitoe appeals the 160-month sentence the

district court imposed after Vittitoe pled guilty to one count of

bank robbery, in violation of 18 U.S.C. § 2113(a) (2000).                       We

affirm.

              Vittitoe’s     conduct   carried    a   base   offense    level   of

twenty, which was increased two levels because the robbery involved

the   property     of   a    financial    institution.        U.S.     Sentencing

Guidelines Manual § 2B3.1(a) & (b)(1) (2005) (“USSG”).                 Due to the

nature of this offense and Vittitoe’s criminal history, Vittitoe

was designated a career offender.              USSG § 4B1.1 (2005).       Because

the statutory maximum term of imprisonment for a violation of 18

U.S.C.    §   2113(a)   is    twenty     years,    Vittitoe’s   offense    level

increased to thirty-two.         USSG § 4B1.1(b) (2005).         With a three-

level reduction for acceptance of responsibility, Vittitoe’s total

offense level was twenty-nine.             This, coupled with a criminal

history category of VI,1 yielded an advisory Guidelines range of

151 to 188 months’ imprisonment.               USSG Ch. 5, Pt. A (sentencing

table) (2005).      Vittitoe did not object to the application of the

Guidelines as set forth in the presentence report.




      1
      Under the career offender guideline, “[a] career offender’s
criminal history category in every case . . . shall be Category
VI.” USSG § 4B1.1(b).

                                       - 2 -
              On appeal, Vittitoe first posits that the presumption of

reasonableness this court affords post-Booker2 sentences that are

within a properly calculated Guidelines range is unconstitutional.

A plethora of circuit precedent forecloses this argument.                  See,

e.g., United States v. Montes-Pineda, 
445 F.3d 375
, 379 (4th Cir.

2006), 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).   Because one panel of this court cannot overrule another,

we decline Vittitoe’s invitation to ignore established circuit

authority.     United States v. Chong, 
285 F.3d 343
, 346-47 (4th Cir.

2002) (internal quotation marks and citations omitted).

              Vittitoe next asserts that his sentence is unreasonable.

In post-Booker sentencing, district courts must calculate the

appropriate Guidelines range, consider the range in conjunction

with other relevant factors under the Guidelines and 18 U.S.C.A.

§   3553(a)    (West   2000   &   Supp.   2006),   and   impose   a   sentence.

Moreland, 437 F.3d at 432-33
. A sentence imposed within a properly

calculated Guidelines range is presumptively reasonable.                 
Green, 436 F.3d at 457
.




      2
       United States v. Booker, 
543 U.S. 220
(2005).

                                     - 3 -
             Vittitoe’s 160-month sentence is presumptively reasonable

because it is within both the properly calculated Guidelines range

and the applicable statutory maximum.          Although the district court

did not explicitly discuss every § 3553(a) factor on the record, it

was not required to “robotically tick through § 3553(a)’s every

subsection.”     
Johnson, 445 F.3d at 345
; see United States v. Eura,

440 F.3d 625
, 632 (4th Cir. 2006), petition for cert. filed, __

U.S.L.W. __ (U.S. June 20, 2006) (No. 05-11659).                    The record

reflects that the district court complied with § 3553(a)(1), and

considered      Vittitoe’s     personal    history   and   circumstances       in

determining his sentence.           Illustrative of the individualized

sentencing consideration Vittitoe received is the fact that the

district     court   made    specific     recommendations    on     the    record

regarding the mental health services Vittitoe should receive while

incarcerated.

           For the foregoing reasons, we affirm Vittitoe’s sentence.

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




                                     - 4 -

Source:  CourtListener

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