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United States v. Nicholson, 06-4721 (2007)

Court: Court of Appeals for the Fourth Circuit Number: 06-4721 Visitors: 40
Filed: Jun. 04, 2007
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4721 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DAMON DEMONT NICHOLSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:05-cr-00269-FL) Submitted: May 31, 2007 Decided: June 4, 2007 Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. M
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                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4721



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DAMON DEMONT NICHOLSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan, Chief
District Judge. (5:05-cr-00269-FL)


Submitted: May 31, 2007                        Decided:   June 4, 2007


Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi
Rangarajan, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Damon Demont Nicholson appeals the 120-month sentence the

district court imposed after Nicholson pled guilty to one count of

being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1), 924 (2000).    We affirm.

           On appeal, Nicholson first challenges the presumption of

reasonableness this court affords post-Booker* sentences that are

within a properly calculated guidelines range.            A plethora of

circuit precedent forecloses this argument.         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).            We

decline   Nicholson’s   invitation   to   ignore   established   circuit

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

Cir. 2002) (internal quotation marks and citations omitted) (noting

that one panel of this court cannot overrule another).

           Nicholson next asserts that the district court failed to

appropriately consider the other sentencing factors set forth in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2006). Although the district

court did not explicitly discuss every § 3553(a) factor on the


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

                                - 2 -
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.), 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 Nicholson’s personal history and

circumstances — including his mental health and substance abuse

issues — in determining his sentence.            Thus, this claim lacks

merit.

           We affirm Nicholson’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




                                   - 3 -

Source:  CourtListener

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