United States of America v. Booker, 543 U.S. 200, 260-61 2005

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4900
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSHUA MATTHEW MANN,
Defendant - Appellant.
No. 06-5056
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSHUA LEE BARE, a/k/a Trigger,
Defendant - Appellant.

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No. 06-5064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY LAMONT ALEXANDER, a/k/a Raven,
Defendant - Appellant.
No. 07-4001
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH WILLIAM ZACAROLO,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00036-JAB-4; 1:06-cr-00036-JAB-3; 1:06-
cr-00036-JAB-2; 1:06-cr-00036-JAB-1)
Submitted: July 18, 2007 Decided: August 2, 2007
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.

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Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina; William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North
Carolina; William S. Trivette, Assistant Federal Public Defender,
Greensboro, North Carolina; Bryan E. Gates, Jr., Winston-Salem,
North Carolina, for Appellants. Anna Mills Wagoner, United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to written plea agreements, Appellants Joshua
Matthew Mann, Joshua Lee Bare, Jeffrey Lamont Alexander, and Joseph
William Zacarolo entered pleas of guilty to maliciously damaging
and destroying rental property by means of fire and explosive, 18
U.S.C. § 844(1) and 2; of use of a firearm by discharging, 18
U.S.C. § 924(c)(1)(A)(iii) and 2; and possessing unregistered
firearms, 26 U.S.C. §§ 5861 and 5871, and 18 U.S.C. § 2. The
district court sentenced Mann to 312 months in prison, Bare to 288
months, Alexander to 228 months, and Zacarolo to 268 months.
Appellants assert (1) the district court erred by
enhancing their sentences based upon uncharged attempted murder,
pursuant to USSG § 2A2.1; (2) the district court erred by not
considering all of the § 3553(a) factors and in imposing severe
sentences; and (3) this Court’s presumption that a sentence within
the guidelines range is reasonable is a return to unconstitutional
mandatory guidelines sentencing. Finding no error, we affirm.
This court reviews the imposition of a sentence for
reasonableness. United States v. Booker, 543 U.S. 200, 260-61
(2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.
2005). After Booker, courts must calculate the appropriate
guidelines range, making any appropriate factual findings. United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The court
then should consider the resulting advisory guidelines range in

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conjunction with the factors under 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2006), and determine an appropriate sentence.
Davenport, 445 F.3d at 370. If a court imposes a sentence outside
the guidelines range, the district court must state its reasons for
doing so. Hughes, 401 F.3d at 546.
Appellants contend that their sentences are unlawful
because the district court made findings by a preponderance of the
evidence that increased their sentences beyond both the conduct
with which they were charged and the facts to which they admitted.
However, this general argument was rejected in Booker. After
Booker, the sentencing court is authorized to make factual findings
in order to appropriately determine the advisory sentencing range
under the guidelines. See Davenport, 445 F.3d at 370; see also
United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998)
(holding that sentencing court may enhance defendant’s sentence
based on its findings of conduct by a preponderance of the
evidence, even when jury acquitted defendant of that conduct).
Under the now advisory sentencing guidelines, these authorized
factual findings would include a finding as to whether the object
of the offense would have constituted first-degree murder. First
degree murder means conduct that, if committed within the special
and territorial jurisdiction of the United States, would constitute
first degree murder under 18 U.S.C. § 1111. Such conduct would

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call for application of the murder guideline, USSG § 2A1.1 (First
Degree Murder). See USSG § 2D1.1(d)(1).
Under federal law, murder is the unlawful killing of a
human being with malice aforethought, and first degree murder
requires that the murder is willful, deliberate, malicious and
premeditated. Attempt requires a culpable intent to commit the
crime and a substantial step towards its commission. United
States v. Neal, 78 F.3d 901, 906 (4th Cir 1996). A substantial
step requires more than mere preparation. Id.
The evidence presented at the sentencing hearings
supported the district court’s conclusion by a preponderance of the
evidence that each defendant was involved in the attempted murder
of Castle. The actions and statements of the defendants reflect a
premeditation and deliberate and malicious intentions. The attack
upon Castle’s home was undertaken at night, when Castle was likely
to be home asleep, which would both reduce the likelihood of his
escape and increase the likelihood he would be injured or killed.
In addition, it would be more difficult to apprehend Appellants
under the cover of darkness. Moreover, statements such as they
were headed to Castle’s to “shoot up the place,” indicate an intent
to kill Castle. The fabrication of the Molotov cocktails and the
possession of firearms also demonstrate premeditation. Upon
arriving at Castle’s home, there were cars parked outside, and all
of the lights were off, indicating Castle was at home and asleep.

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The four defendants then either threw the six flammatory devices or
fired rounds of ammunition into the house. Two Molotov cocktails
entered the home. After the six devices were thrown at the home,
Bare shot at the house, demonstrating an intent to light the
cocktails on fire. An examination of the front bedroom determined
that the cocktails and rounds from the firearms caused a fire in
the bedroom occupied by Castle’s guests, the Bowers. Moreover, Ms.
Bowers was struck by a bullet in the back during her attempt to
escape the home with her children.
While defendants argue they were under the influence of
drugs and alcohol and lacked the ability to form intent to kill and
to premeditate, their actions clearly demonstrate otherwise. The
evidence overwhelmingly supports the district court’s determination
by a preponderance of the evidence that the conduct presented at
sentencing would have supported a conviction for attempted first
degree murder under 18 U.S.C § 1111. The district court thus did
not err in applying the attempted murder cross-reference.
Defendants next assert their sentences are unreasonable
because the district court did not consider each factor in § 3553
and the sentences are more severe than necessary to satisfy the
requirements of § 3553. As discussed above, this court will affirm
a post-Booker sentence if it “is within the statutorily prescribed
range and is reasonable.” United States v. Moreland, 437 F.3d 424,
432-33 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). (internal

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quotation marks and citation omitted). “[A] sentence within the
proper advisory Guidelines range is presumptively reasonable.”
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
“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.’” Moreland,
437 F.3d at 432 (quoting United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005)). This court has repeatedly held that a sentence
imposed within a properly calculated Guidelines range is presumed
reasonable, and the Supreme Court has upheld this presumption. See
Rita v. United States, 551 U.S.___, 2007 WL 1772146, at *3, *6
(U.S. June 21, 2007), (No. 06-5754).
The district court specifically stated that after
considering the guidelines ranges and the § 3553 factors, the
guidelines ranges were appropriate for fashioning a sentence in
each of the four cases. The court looked at prior criminal records
and recidivism, substance abuse and psychiatric issues, lack of
work history, and educational history. Because the district court
adequately explained the basis for its sentencing decision and
considered the defendants’ arguments, the § 3553(a) factors, and
the cross-reference for murder enhancement, and because the
sentences were within the properly calculated advisory guidelines
range, we conclude the Appellants’ sentences are reasonable.

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Finally, Appellants argue that this circuit’s presumption
that a sentence within the guidelines range is reasonable is an
unconstitutional return to mandatory guidelines sentencing. As
previously noted, the Supreme Court recently upheld our
reasonableness presumption for sentencing within a properly
calculated guidelines range. See Rita, 551 U.S. at ___, 2007
WL1772146, at *3, *6.
Accordingly, we affirm each Appellant’s conviction and
sentence. We deny counsel’s motion to withdraw. 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

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