                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5002


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

TERRENCE SMITH,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:05-cr-00061-JFM-6)


Submitted:    September 9, 2009           Decided:   September 18, 2009


Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas J. Saunders, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, A. David Copperthite, Kwame
J.   Manley,  Assistant  United  States  Attorneys,   Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              We   previously     affirmed    Terrence       Smith’s    convictions

for several crimes related to the firebombing of Edna McAbier’s

home    but    vacated      his   960-month      sentence     and     remanded    for

resentencing. United States v. Harris, 498 F.3d 278, 281 (4th

Cir. 2007).        On remand, the district court again sentenced Smith

to    960   months    in    prison.      Smith   now    appeals,       raising   four

issues.     We affirm.



                                          I

              According to Smith’s presentence report (PSR), Counts

One, Two, Three and Six (conspiracy to commit witness tampering,

two    counts       of     witness     tampering,      and     making      firearms,

respectively),       were    grouped.      See   U.S.   Sentencing         Guidelines

Manual § 3D1.2(b) (2007).              Because the object of the offense

would have constituted first degree murder, the cross-reference

for assault with intent to commit murder was applied, for a base

offense level of 33.          See USSG §§ 2A2.1(a)(1), 2X1.1(a), 2K2.1.

There were no adjustments, and Smith’s total offense level for

these offenses was 33. His criminal history category was VI, and

his advisory Guidelines range for the group was 235-293 months.

              With respect to Count Four (use of firearms in a crime

of    violence),     Smith    was     statutorily   subject      to    a   mandatory

minimum consecutive term of thirty years because the firearm

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used      was     a     destructive            device.           See        18      U.S.C.

§§ 924(c)(1)(B)(ii),           924(c)(1)(D)(ii)             (2006).         Under        the

applicable guideline, Smith’s guideline sentence was the minimum

term of imprisonment absent any Chapter Three or Four reductions

or     enhancements.          USSG    § 2K2.4(4)(b).            Because      he    had     a

conviction other than for the § 924(c) offense, and because he

qualified as a career offender, USSG § 4B1.1(a), his advisory

Guidelines range for this count was determined by adding the

minimum    consecutive        penalty    (30    years    or    360    months)      to    the

minimum and maximum of the range (235-293 months) for the group

above.     As a result, the advisory Guidelines range for Counts

One, Two, Three, Four, and Six was 595-653 months.

            Smith       was     statutorily        subject       to     a        mandatory

consecutive minimum term of ten years for Count Five (using fire

and explosives in a felony).                   See 18 U.S.C. § 844(h) (2006).

His guideline range was the term of imprisonment required by

statute,     less      any     Chapter     Three       or     Four     reductions        or

enhancements.         See USSG § 2K2.4(a).            Adding this ten-year (120-

month)     term   to    the     range    calculated          above,    Smith’s       total

advisory Guidelines range was 715-773 months.                        United States v.

Harris, 498 F.3d at 293-94.

            After hearing from counsel and Smith at resentencing,

the    district     court     again   imposed     a     960-month      sentence.          In

imposing sentence, the court addressed each of the 18 U.S.C.

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§ 3553(a) (2006) sentencing factors.                         The court commented that

McAbier     was     an     innocent       citizen        and    community         leader     who

promoted respect for the law.                       Had she been killed during the

firebombing        of      her     home,        her      murder       would        have     been

“horrendous.”           Smith’s crimes, the district court found, were

“beyond     what       civilized    society           will   accept.”            Smith    was   a

dangerous person from whom the public should be protected and

who should never be released from prison.                          The court concluded

that    a      sentence    within        the     advisory       Guidelines          range    was

insufficient to achieve the sentencing goals but that a 960-

month sentence would serve them instead.



                                                II

               We review a sentence for reasonableness, applying an

abuse-of-discretion standard.                   Gall v. United States, 552 U.S.

38, ___, 128 S. Ct. 586, 597 (2007).                         In conducting our review,

we     first     examine     the    sentence           for     “significant         procedural

error,”        including         “failing        to     calculate          (or      improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting

a    sentence     based    on     clearly       erroneous       facts,      or     failing      to

adequately explain the chosen sentence. . . .”                                Id.        We next

“consider        the     substantive           reasonableness         of     the      sentence

imposed.”         Id.      At     this    stage,        we    “take   into       account     the

                                                4
totality   of   the    circumstances,        including    the   extent   of   any

variance from the Guidelines range.”                Id.     “If the district

court decides to impose a sentence outside the Guidelines range,

it must ensure that its justification supports ‘the degree of

the variance.’”       United States v. Evans, 526 F.3d 155, 161 (4th

Cir.), cert. denied, 129 S. Ct. 476 (2008) (quoting Gall, 128 S.

Ct. at 597).



                                     III

           Smith contends that he was improperly found to be a

career offender.      Under the applicable guideline:

     A defendant is a career offender if (1) the defendant
     was at least eighteen years old at the time the
     defendant committed the instant offense of conviction;
     (2) the instant offense of conviction is a felony that
     is either a crime of violence or a controlled
     substance offense; and (3) the defendant has at least
     two prior felony convictions of either a crime of
     violence or a controlled substance offense.

USSG § 4B1.1(a). According to the PSR, Smith had the requisite

two previous felony convictions (for second degree assault and

possession with intent to distribute cocaine), and he otherwise

qualified as a career offender.                Smith contends that, because

the two convictions were disposed of at one time, they should

have been treated as one sentence under USSG § 4A1.2(a)(2), and

he   accordingly      had   only   one       qualifying   felony   for   career

offender purposes.


                                         5
            The   relevant       guideline       provides,      “Prior     sentences

always are counted separately if the sentences were imposed for

offenses that were separated by an intervening arrest.”                           USSG

§ 4A1.2(a)(2).       The PSR discloses that Smith was arrested on

February 28, 1997, after he assaulted a bus driver.                             He was

arrested on July 23, 1997, after he was observed selling crack

cocaine.     Smith   was    sentenced       on   April    15,    1999,    for    these

offenses.     Because      the    two   offenses     were       separated    by    the

intervening arrest for the assault, it is irrelevant that they

were consolidated for sentencing.                Smith qualified as a career

offender.



                                        IV

            The   district   court      applied     the    cross-reference         for

assault with intent to commit murder to the grouped offenses.

See USSG § 2A2.1(a)(1).          The court found as a fact that the act

of hurling six Molotov cocktails at McAbier’s home--three at her

front door; three at the back door--revealed a clear intent to

block her escape from her burning home, and thereby to murder

her.   Smith contends that, because McAbier was not injured, the

cross-reference for aggravated assault, USSG § 2A2.2, or minor

assault, USSG § 2A2.3, should have applied instead.                      We conclude

that the district court’s findings supporting application of the

cross-reference for assault with intent to commit murder are not

                                        6
clearly erroneous, and they will not be disturbed on appeal.

See   United        States    v.   Crump,     120    F.3d       462,    467-68       (4th      Cir.

1997).



                                               V

               Although      Smith    recognizes       that       18     U.S.C.       §§ 924(c)

(1)(D)(ii)      and     844(h)      specifically      require          the   imposition         of

consecutive sentences, he argues that, after United States v.

Booker,       543    U.S.    220     (2005),       sentencing          courts       may    ignore

mandatory statutory language.                      Contrary to Smith’s assertion,

“Booker did nothing to alter the rule that judges cannot depart

below     a    statutorily         required    minimum          sentence.       .    .     .   [A]

district judge has no discretion to impose a sentence outside of

the statutory range established by Congress for the offense of

conviction.”          United States v. Robinson, 404 F.3d 850, 862 (4th

Cir. 2005) (emphasis in original).



                                              VI

               Smith’s       final     contention          is     that       his      960-month

variance sentence is unreasonable and that he should have been

sentenced within his advisory Guidelines range.                                 We conclude

after carefully reviewing the record that the district court

committed no “significant procedural error.”                             See Gall, 128 S.

Ct.     at     597.          Further,    based        on        the     totality          of   the

                                               7
circumstances, and giving “due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the

extent of the variance,” see id., we are convinced that the

sentence is substantively reasonable.



                                      VII

            We accordingly affirm. We dispense with oral argument

because the facts and legal contentions are adequately presented

in   the   materials   before   the    court   and   argument   would   not

significantly aid the decisional process.

                                                                  AFFIRMED




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