UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4715
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ABELARDO BUSTOS-SERRANO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-253-WLO)
Submitted: May 19, 2006 Decided: June 13, 2006
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Walter L. Jones, CLIFFORD, CLENDENIN, O’HALE & JONES, LLP,
Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Randall Stuart Galyon, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Abelardo Bustos-Serrano pled guilty to one count of
conspiracy to distribute in excess of five kilograms of cocaine, in
violation of 21 U.S.C. § 846 (2000). He was sentenced to 175
months in prison. Bustos-Serrano now appeals. His attorney has
filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), raising two issues but stating that, in his opinion, there
are no meritorious issues for appeal. Bustos-Serrano was advised
of his right to file a pro se supplemental brief, but has not filed
such a brief. We affirm.
In his plea agreement, Bustos-Serrano stipulated that he
was accountable for at least fifteen, but less than fifty,
kilograms of cocaine. His presentence report (PSR) accordingly
assigned a base offense level of 34. See U.S. Sentencing
Guidelines Manual § 2D1.1(c)(3) (2004). Two levels were added for
possession of a firearm, see USSG § 2D1.1(b)(1), and two levels
were added because Bustos-Serrano was the manager or supervisor of
a criminal activity involving fewer than five persons, see USSG
§ 3B1.1(c). His adjusted offense level therefore was 38. Three
levels were subtracted for acceptance of responsibility, see USSG
§ 3E1.1(b), for a total offense level of 35. His criminal history
category was I, and his guideline range was 168-210 months.
Bustos-Serrano objected to the enhancements for possession of a
firearm and role in the offense.
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At sentencing, the district court concluded that a
preponderance of the evidence supported the contested enhancements.
The court also heard argument as to the impact the factors set
forth at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005) should have
on the sentence. After hearing from Bustos-Serrano, the court
sentenced him to 175 months in prison.
On appeal, counsel claims that the two enhancements
violate the Sixth Amendment under United States v. Booker, 543 U.S.
220 (2005). However, our de novo review of this claim, see United
States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003), discloses no
error. After Booker, district courts must calculate the
appropriate advisory guideline range, consider that range in
conjunction with the § 3553(a) factors, and impose a sentence,
which “must be within the statutorily prescribed range and . . .
reasonable.” United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005) (citations omitted). “[A] sentence imposed within the
properly calculated Guidelines range . . . is presumptively
reasonable.” United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006) (internal quotation marks and citation omitted). Here, the
175-month sentence falls within both the guideline range of 168-210
months and the statutory range of ten years to life in prison, see
18 U.S.C. § 841(b)(1)(A) (2000).
Bustos-Serrano complains that the guideline range was
erroneously calculated because the two enhancements were based upon
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facts found by the district court by a preponderance of the
evidence. He believes that, to withstand Sixth Amendment scrutiny
after Booker, the enhancements had to be based on facts found by a
jury beyond a reasonable doubt or on his own admissions. We
discern no Sixth Amendment error because the district court acted
properly in making the relevant findings based on a preponderance
of the evidence. See United States v. Morris, 429 F.3d 65, 71-72
(4th Cir. 2005); Hughes, 401 F.3d at 546.
In accordance with Anders, we have thoroughly reviewed
the entire record and found no meritorious issues for appeal. We
therefore affirm. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court to withdraw
from representation. Counsel’s motion must state that a copy
thereof was served on the client. 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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