                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4416



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ALEX OHARA KING,

                                              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. (7:05-cr-00088-FL-DAN)


Submitted:   January 19, 2007             Decided:   March 16, 2007


Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Diana Pereira, Research and
Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer May-Parker, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Appellant Alex Ohara King appeals his sentence of 84 months’

imprisonment, which was at the low end of the advisory guidelines

range, arguing that it was unreasonable.          Because King has failed

to rebut the presumption of reasonableness attached to his within-

the-guidelines sentence, we affirm.



                                      I.

       On April 26, 2004, the Brunswick County Sheriff’s Office

responded     to   a   shooting,   which   occurred   at   Travis   Johnson’s

residence in Supply, North Carolina.           An investigation revealed

that on that day, King approached Johnson and his friend Kenneth

Bryant, Jr., who were both sitting on Johnson’s porch.              King said

to Bryant, “I heard you were at my house.”            (J.A. at 110.)1   King

then drew a handgun and fired at Bryant, although he failed to hit

him.       King attempted to fire again, but the gun malfunctioned.

Bryant retreated into the house unharmed, and King eventually fled

the scene.

       A warrant was subsequently issued for misdemeanor assault with

a deadly weapon, and on April 30, 2004, King surrendered to the

Sheriff’s Office.       King also surrendered the .380 caliber handgun

that he had used to fire at Bryant.          King stated that he shot at



       1
      Citations to the “J.A.” refer to the joint appendix filed
with this appeal.

                                       2
Bryant because Bryant had previously made sexual advances toward

King’s teenage daughter.

     On    January   13,   2005,   the       Sheriff’s     Office   conducted      an

unrelated traffic stop of King’s vehicle.                King was arrested for

driving with a suspended license and it was determined that he had

an unrelated outstanding warrant.              King consented to a search of

his vehicle, and the police found an assault rifle and two thirty-

round magazines stored under the rear seat where his infant son was

seated. The police also discovered a small amount of cocaine base,

which King stated he was going to trade for sex.

     Approximately     seven   months        later,   on    July    7,   2005,    the

Sheriff’s Office responded to a shooting in Supply.                 Investigators

found the victim, Melissa Carpenter, who had been shot in the leg

by King.    Carpenter did not wish to press charges, but stated that

she and King had been fighting when King shot her.                  The next day,

King turned in a .22 caliber revolver to the police, which he

stated he had wrestled away from Carpenter.              On July 14, 2005, King

traveled to the Sheriff’s Office to talk with investigators.                     Upon

his arrival, investigators searched his car and discovered eight

rounds of .380 caliber ammunition.

     On August 10, 2005, King was named in a four-count indictment

in the Eastern District of North Carolina, charging him with being

a felon in possession of a firearm on April 30, 2004 (Count One);

on January 13, 2005 (Count Two); on July 7, 2005 (Count Three); and


                                         3
with being a felon in possession of ammunition on July 14, 2005

(Count Four), each count a violation of 18 U.S.C. § 922(g)(1).

     King pleaded guilty to Count One without a plea agreement, and

the Government thereafter dismissed Counts Two through Four. Based

on prior felony convictions for assault with a deadly weapon and

common law robbery,2 the pre-sentence report (PSR) determined

King’s base offense level for his § 922(g) conviction to be 24.

Pursuant to § 2K2.1(b)(1)(A) of the 2005 Sentencing Guidelines

Manual, the PSR recommended a two-level upward adjustment on a

finding    that    the    offense    involved       three   different      firearms.

Pursuant to § 2K2.1(b)(5), the PSR also recommended a four-level

upward    adjustment      on   a   finding    that   King    used    a   firearm    in

connection    with       another    felony    offense.        Finally,      the    PSR

recommended    a   two-level       downward     adjustment     based     on     King’s

acceptance    of    responsibility.           The    end    result   was    a   total

recommended offense level of 28.             Based on King’s criminal history

category of VI, the guideline range would have been 140 to 175

months.    The statute, however, allows only for a maximum sentence

of 120 months, so the PSR identified the guideline range as 120

months’ imprisonment.          See 18 U.S.C.A. § 924(a)(2) (West 2000 &

Supp. 2006) (providing in relevant part that whoever knowingly



     2
      The PSR noted that King had twice been convicted of
misdemeanor assault with a deadly weapon, once of common law
robbery, twice of assault on a female, once of credit card fraud,
as well as various other convictions.

                                         4
violates § 922(g) is subject to imprisonment of “not more than 10

years”).

     King objected to the PSR, contending that his criminal history

category should have been V, and that his total offense level

should have been 17, resulting in a guideline range of 46 to 57

months.     King   further     argued     that   because      of    his   family

responsibilities (he is the primary provider for his children) and

the victim’s conduct (contending that Bryant instigated King’s

assault), a downward variance from the guidelines was warranted.

     The   district    court   then     conducted     a   lengthy    sentencing

hearing.    The court began by noting King’s extensive criminal

history and his past drug use.        It also noted that he was employed

and responsible for his children, and the court considered letters

written by King’s children on his behalf.                   Addressing King’s

specific objections to the PSR, the district court sustained King’s

objections to the four-level enhancement for possessing a firearm

in connection with another felony and the two-level enhancement for

the involvement of three or more firearms.                The district court,

however,   overruled    King’s   objection       to   use    of    his    assault

convictions as part of his criminal history.               The district court

therefore concluded that King’s total offense level should be set

at 22, resulting in an advisory guidelines range of 84-105 months.

     At the district court’s behest, King’s counsel then addressed

the court concerning his motion for a downward departure or a


                                      5
variance.      First, the district court found that there was no

support for a sentencing departure based on the victim’s conduct,

because King’s response was “disproportionate.”           (J.A. at 86.)

Because Bryant was nowhere near the vicinity of King’s house or

daughter, it was not necessary for King to locate him on a friend’s

porch and fire errant rounds at Bryant.       The district court also

found that King’s family circumstances were not extraordinary.

Accordingly,    the   district   court   declined   to   vary   from   the

guidelines.

     Toward the conclusion of the sentencing hearing, the district

court noted that it had considered King’s guideline range as well

as other factors in addition to and including the factors set forth

in the Sentencing Reform Act.     The district court noted that King

should participate in an intensive drug treatment program and

recommended physical and mental health treatment as well. Although

the district court explicitly considered King’s “responsibilities

as a family man,” (J.A. at 97), it determined that a sentence of 84

months’ imprisonment at the low end of the guideline range was

necessary and appropriate because it was clear that King had put

numerous members of the public and his family at risk and needed to

“get over some demons.”    (J.A. at 97.)




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                                         II.

        Because King was sentenced under the advisory guidelines, we

review his sentence for reasonableness.               United States v. Green,

436 F.3d 449, 456 (4th Cir. 2006).                 The reasonableness of a

sentence turns on the peculiar facts of each case, but “certain

principles would appear to be universally applicable.”                    United

States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006).                  “Foremost

among    these   is    that    a    sentence   within   the    proper    advisory

Guidelines range is presumptively reasonable.”                 United States v.

Johnson, 445 F.3d 339, 341 (4th Cir. 2006).                   “This approach to

post-Booker appellate review is required for three basic reasons:

the   process    by    which   the    Guidelines   were   established,        their

incorporation     of     Congress’s      sentencing     objectives,     and    the

individualized factfinding required to apply them.”                     Id.      In

determining whether a sentence was reasonable, we review the

district court’s legal conclusions de novo and its factual findings

for clear error.       United States v. Hampton, 441 F.3d 284, 287 (4th

Cir. 2006).      “Reasonableness review involves both procedural and

substantive components.”           United States v. Moreland, 437 F.3d 424,

434 (4th Cir. 2006).

        King argues that a lower sentence was appropriate in light of

the 18 U.S.C.A. § 3553(a) factors and that the district court

procedurally erred in failing to explain why a sentence of 84

months was appropriate.            King’s arguments are without merit.


                                          7
      King “can only rebut the presumption [of reasonableness] by

demonstrating that [his] sentence is unreasonable when measured

against the § 3553(a) factors.”              United States v. Montes-Pineda,

445   F.3d   375,    379   (4th   Cir.   2006)      (internal     quotation    marks

omitted). King’s brief, however, fails to explain how his sentence

is unreasonable under those factors, which are:

      (1) the nature and circumstances of the offense and the
      history and characteristics of the defendant; (2) the
      need for the sentence imposed - (A) to reflect the
      seriousness of the offense, to promote respect for the
      law, and to provide just punishment for the offense; (B)
      to afford adequate deterrence to criminal conduct; (C) to
      protect the public from further crimes of the defendant;
      and (D) to provide the defendant with needed educational
      of   vocational   training,  medical   care,   or   other
      correctional treatment in the most effective manner; (3)
      the kinds of sentences available; (4) the kinds of
      sentence and the sentencing rage established [by the
      guidelines]; (5) any pertinent policy statement issued by
      the Sentencing Commission . . .; (6) the need to avoid
      unwarranted sentence disparities . . .; and (7) the need
      to provide restitution to any victims of the offense.

18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).

      King’s   two    primary     arguments    --    (1)   that    he   has   family

responsibilities and (2) that the victim’s conduct was responsible

for his gun possession -- are of no help to him.                   The guidelines

manual explains that “family ties and responsibilities are not

ordinarily relevant in determining whether a departure may be

warranted.”    U.S. Sentencing Guidelines Manual § 5H1.6 (2005).                  We

have interpreted this section as standing for the proposition that

a downward departure based on family responsibilities should be



                                         8
available only for “extraordinary circumstances.” United States v.

Brand, 907 F.2d 31, 33 (4th Cir. 1990).

     On the other hand, the manual does explain that “[i]f the

victim’s wrongful conduct contributed significantly to provoking

the offense behavior, the court may reduce the sentence below the

guideline range to reflect the nature and circumstances of the

offense.” U.S. Sentencing Guidelines Manual § 5K2.10. King cannot

show, however, that the victim’s behavior contributed significantly

to his offense.    Although King fired at Bryant on April 26, 2004,

he was charged with possessing a firearm on April 30, 2004.

Putting   aside   Bryant’s   alleged    conduct,   Congress   has   clearly

criminalized King’s possession of a firearm, regardless of whether

that possession was designed to defend a family member. See, e.g.,

United States v. Gilbert, 430 F.3d 215, 220 (4th Cir. 2005)

(“Congress sought to keep guns out of the hands of those who have

demonstrated that they may not be trusted to possess a firearm

without becoming a threat to society.” (internal quotation marks

omitted)). The wisdom in Congress’s trust issues is well-supported

by King’s conduct in this case.        Moreover, there was a significant

temporal gap between the victim’s alleged conduct and King’s

response, and as the district court properly recognized, King’s

response was clearly “disproportionate.” (J.A. at 86.)          King also

continued to possess the gun thereafter, as well as other guns and




                                   9
ammunition.         Thus, King cannot show that his within-the-guidelines

sentence was substantively unreasonable.

       King further contends that his sentence was procedurally

unreasonable because the district court “provided no explanation

for its decision to impose an 84 month sentence.” (Appellant’s Br.

at 14.)      The record clearly refutes this contention.

       Although a district court must consider the § 3553(a) factors

and    any   meritorious      arguments       raised   by    both    parties     before

imposing a sentence, “this is not to say that the district court

must   robotically        tick     through    §   3553(a)’s       every   subsection.”

Johnson, 445 F.3d at 345.            “This is particularly the case when the

district court imposes a sentence within the applicable Guidelines

range.”      Id.     “Requiring district courts to address each factor on

the record would . . . be an exercise in unproductive repetition

that would invite flyspecking on appeal.”                   Id.

       Here,       the   district    court    explicitly      stated      that   it   had

considered the § 3553(a) factors, and that alone “may well have

been sufficient.”            Id.     Regardless, “the district court went

considerably further by undertaking a detailed inquiry into the

various circumstances bearing upon [King’s] sentence. It addressed

[King’s] character, specifically took note of letters written on

his behalf, and heard argument on, inter alia, the circumstances of

his offenses and his relationship with his family.”                        Id. at 346.

Thus, the district court here performed its task just as well, if


                                             10
not better, than the sentencing court in Johnson.              Like the court

under review in Johnson, the district court here also recommended

King for special treatment programs, and although it “did not

explicitly match these various findings to particular § 3553(a)

factors, it was not required to do so.”           Id.          In short, the

district court took a model approach to sentencing King, taking

seriously King’s arguments, his guideline range, and the § 3553(a)

factors.    After   doing   so,   it    imposed   an    entirely   reasonable

sentence.   Accordingly, “[n]othing about the proceedings suggests

[King’s] request for a remand is well-taken.”            Id.



                                   III.

     Accordingly, we affirm King’s sentence. We dispense with oral

argument because the facts and legal conclusions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                                     AFFIRMED




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