                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4963



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JESSE ROBINSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:04-cr-
00219-AMD)


Submitted: May 25, 2007                       Decided:   July 11, 2007


Before WILKINSON and MICHAEL, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Harold I. Glaser, GLASER & SOLOMON, L.L.C., Baltimore, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, James T.
Wallner, Special Assistant United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Jesse Robinson was convicted by a jury of possession of

a    firearm    by   a   convicted     felon,   in   violation   of   18   U.S.C.

§ 922(g)(1) (2000).          The district court found that Robinson’s

criminal history qualified him for sentencing under the Armed

Career Criminal Act (“ACCA”), and sentenced Robinson to 235 months

of    imprisonment       under   the    then-mandatory    federal     sentencing

guidelines.1

               We previously affirmed Robinson’s conviction, but vacated

his sentence, and remanded for resentencing in accordance with

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

Hughes, 401 F.3d 540 (4th Cir. 2005).2                  At resentencing, the

district court sentenced Robinson to 220 months’ imprisonment,

fifteen months below the advisory guidelines range. Robinson again

appeals, contending that the district court misapplied Booker, that

the prosecutor improperly “vouched” to the court during sentencing


       1
      The probation officer assigned Robinson a base offense level
of twenty-four based U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(a)(2) (2004), because Robinson had at least two prior
felony convictions for controlled substance crimes, and then
applied an enhancement pursuant to USSG § 4B1.4, bringing his total
offense level to thirty-three, with an attendant guidelines range
of 235 to 293 months’ imprisonment. The probation officer also
assigned Robinson a criminal history category of VI.
       2
      We also found to be without merit Robinson’s claim that the
district court erred under Blakely v. Washington, 542 U.S. 296
(2004) and United States v. Booker, 543 U.S. 200 (2005), when it
found him eligible for sentencing under the ACCA based on predicate
convictions that had neither been found by a jury nor admitted by
him.

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regarding prior charged conduct, and that the district court erred

in sentencing Robinson under the ACCA, on the basis that the

district court failed to properly apply 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2006).   We affirm.

           Robinson first asserts that the district judge misapplied

the Court’s holding in Booker, noting that the error was predicated

on “improper vouching” by the prosecutor during sentencing.               He

contends that by calling attention to the facts underlying the

instigation of the federal charges against him, the prosecutor

influenced the district court to give Robinson a harsher sentence.

The statements to which Robinson objects were made at both the

original sentencing hearing, as well as the resentencing hearing,

and related to Robinson’s prior arrest and trial for attempted

murder in the Circuit Court for Baltimore City, which trial ended

in a hung jury.    Robinson alleges that the Government erred in

asking the district court to consider a charge for which Robinson

had never been convicted, and asserts the district court gave

improper   consideration    to   facts   that   were   collateral   to   the

§ 3553(a) factors in determining Robinson’s sentence.

           As Robinson did not challenge the prosecutor’s statements

at the sentencing hearing, we review his claim for plain error.

United States v. Olano, 507 U.S. 725, 732 (1993). “Vouching occurs

when the prosecutor indicates a personal belief in the credibility

or honesty of a witness.”    United States v. Sullivan, 455 F.3d 248,


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259 (4th Cir. 2006) (quoting United States v. Sanchez, 118 F.3d

192,       198   (4th   Cir.   1977)).     In    this   case,    the   prosecuting

attorney’s        comments     did   not    convey,     either    implicitly    or

explicitly, an expression of the prosecutor’s or the Government’s

opinion as to the veracity of any witness.               See Sanchez, 118 F.3d

at 198) (prosecutor’s comment not an expression of opinion).

Rather, the remarks in this case were made to the judge at

sentencing, and had nothing to do with any witness.                    As such, we

find that the comments were not vouching at all, as alleged by

Robinson.        In addition, the statements were not improper, as the

prosecutor simply was stating the procedural posture of the case in

the state system and asserting that Robinson would have been

retried but for the federal conviction.               None of the statements to

which Robinson objects were of the prosecutor’s personal beliefs

regarding any witness, about the merits of the dismissed charges,

nor about the outcome of a second state trial had one occurred.

Moreover, it has been established even before Booker was decided

that courts are free to consider dismissed or even acquitted

conduct when formulating a sentence.              See, e.g., United States v.

Martinez, 136 F.3d 972, 979 (4th Cir. 1998).3              Finally, pursuant to


       3
      Robinson’s contention that by calling attention to the facts
underlying the instigation of the federal charges against him, the
prosecutor influenced the district court to give Robinson a harsher
sentence, is directly contradicted by the district court’s
statement at sentencing that its reason for sentencing Robinson to
fifteen fewer months than it had when it originally sentenced
Robinson was because it wanted to give him credit for the time he

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§   3553(a)(1),     Robinson’s      criminal       history   and   characteristics

properly are subject to the district court’s consideration when

formulating a sentence.           Accordingly, we find that Robinson failed

to demonstrate error with regard to the prosecutor’s statements

relative to the state court charges, and, as discussed more fully

below, we further find that the district court fully complied with

Booker    in    resentencing      Robinson    under    an    advisory    guidelines

scheme.

               Robinson again asserts district court error in enhancing

his sentence under the ACCA, basing his challenge on the district

court’s alleged failure to consider all the factors in § 3553(a) in

determining his sentence.            Specifically, he claims the district

court failed to consider a series of exhibits he presented to it,

including letters from his parents, his high school diploma, and

evaluations      and   certificates     of    completion       from   various      drug

rehabilitation programs and educational and vocational classes,

challenges the district court’s failure to grant his requested

departure due to the alleged over representation of the seriousness

of his criminal history, his young age, and his drug and alcohol

abuse    history,      and   he    claims    the    district    court    failed     to

“adequately” factor in the need to provide him with educational or

vocational training, medical care, or other correctional treatment.



served in the State institution                while    awaiting      trial   on   the
attempted murder case.

                                       - 5 -
           In imposing a sentence after Booker, the district court

must engage in a multi-step process.             First, the court must

correctly determine, after making appropriate findings of fact, the

applicable guideline range.     See United States v. Hughes, 401 F.3d

540, 546 (4th Cir. 2005).     Next, the court must “determine whether

a sentence within that range . . . serves the factors set forth in

§ 3553(a) and, if not, select a sentence [within statutory limits]

that does serve those factors.”        United States v. Green, 436 F.3d

449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).              The

district   court   must   articulate    the   reasons   for   the   sentence

imposed, particularly explaining any departure or variance from the

guidelines range.     See 18 U.S.C.A. § 3553(c) (West Supp. 2006);

Hughes, 401 F.3d at 546 & n.5.          The explanation of a variance

sentence must be tied to the factors set forth in § 3553(a) and

must be accompanied by findings of fact as necessary.           See Green,

436 F.3d at 455-56.       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.”              United

States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (internal

quotation marks omitted).       This court reviews the sentence for

reasonableness, considering “the extent to which the sentence . . .

comports with the various, and sometimes competing, goals of




                                 - 6 -
§ 3553(a).”     United States v. Moreland, 437 F.3d 424, 432-33 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006).

              Here, the district court sentenced Robinson below his

properly calculated Guideline sentencing range. Despite Robinson’s

arguments, the record reveals that the district court considered

the record, the presentence report, defense counsel’s memorandum

and argument in support of various departures, and the factors in

§ 3553(a).     The district court enunciated each § 3553(a) factor it

considered prior to imposing sentence on Robinson, and specifically

referred to Booker at the resentencing hearing.                The court stated

that while it had considered Robinson and his family, the important

factors it needed to consider were to protect the community, to

show the seriousness of the offense, and to deter future criminal

activity by Robinson.      It rejected Robinson’s requests for further

departure.      The district court noted that Robinson demonstrated

much anger during the sentencing hearing, and recommended that

Robinson be admitted to a mental health treatment program, as the

Bureau   of    Prisons   determined    to     be   appropriate.     It   further

included in its sentencing ruling that Robinson participate in a

vocational/educational      program,     as    well   as   a   substance   abuse

program.

              The record reveals that the district court was familiar

with Robinson’s history and background, it had sentenced Robinson

originally, and it was familiar with the details of Robinson’s case


                                      - 7 -
from the initial sentencing hearing. Robinson’s presentence report

outlined his offense conduct and his criminal history.             Finally,

Robinson and his attorney took the opportunity to argue at length

at resentencing in support of a shorter sentence and about the

strength of the evidence against Robinson, providing additional

information about the nature and circumstances of his circumstances

and   his   offense   prior   to   the   district   court’s   imposition    of

sentence.

            We find that the district court here considered all the

appropriate statutory and constitutionally mandated factors, as

well as the information and arguments presented to it in the course

of sentencing, and it explained its reasons for imposing a sentence

below the Guidelines range in deciding Robinson’s sentence.                The

district court fully complied with the mandates of Booker and

Hughes, and find that Robinson’s sentence was reasonable and not in

violation of his Sixth Amendment rights.            See Green, 436 F.3d at

456-58 (discussing standards to determine whether sentence is

reasonable).     See generally United States v. Hill, 70 F.3d 321,

324-25 (4th Cir. 1995).

            Accordingly, we affirm Robinson’s sentence.          Given that

Robinson is represented by counsel, we deny his motion to file a

supplemental pro se brief, and further deny his motion to relieve

his attorney. We dispense with oral argument because the facts and




                                    - 8 -
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.




                                                         AFFIRMED




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