UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4667
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY MARK LOWE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Robert E. Maxwell,
Senior District Judge. (CR-04-13)
Submitted: April 26, 2006 Decided: June 9, 2006
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Edmund J. Rollo, Morgantown, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Zelda E. Wesley, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Mark Lowe appeals his conviction and 78-month
sentence following a guilty plea to one count of distribution of
cocaine, in violation of 21 U.S.C. § 841 (2000). Finding no
reversible error, we affirm.
After the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), a sentencing court is no longer bound
by the range prescribed by the sentencing guidelines. See United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005) (noting
after Booker, sentencing courts should determine the sentencing
range under the guidelines, consider the other factors under
§ 3553(a), and impose a reasonable sentence within the statutory
maximum). However, in determining a sentence post-Booker,
sentencing courts are still required to calculate and consider the
guideline range prescribed thereby as well as the factors set forth
in 18 U.S.C. § 3553(a) (2000). Id. We will affirm a post-Booker
sentence if it is both reasonable and within the statutorily
prescribed range. Id. at 546-47. We have further stated that
“while we believe that the appropriate circumstances for imposing
a sentence outside the guideline range will depend on the facts of
individual cases, we have no reason to doubt that most sentences
will continue to fall within the applicable guideline range.”
United States v. White, 405 F.3d 208, 219 (4th Cir.), cert. denied,
126 S. Ct. 668 (2005). Indeed, “a sentence imposed ‘within the
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properly calculated Guidelines range . . . is presumptively
reasonable.’” United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006) (citing United States v. Newsom, 428 F.3d 685, 687 (7th Cir.
2005), cert. denied, 126 S. Ct. 1455 (2006)). In sentencing
defendants after Booker, district courts should apply a
preponderance of the evidence standard, taking into account that
the resulting guideline range is advisory only. See United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).
We find that the district court did not err in using the
preponderance of the evidence standard to assess drug quantity
while applying the guidelines as advisory. We further find the
district court properly calculated the guideline range and
appropriately treated the guidelines as advisory. The court
sentenced Lowe only after considering and examining the factors set
forth in § 3553(a). Based on these factors, and because the court
sentenced Lowe within the applicable guideline range and the
statutory maximum, we find that Lowe’s sentence of 78 months of
imprisonment is reasonable.
Accordingly, we affirm the judgment of the district
court. 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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