UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4289
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT MINTER, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:04-cr-00026)
Submitted: September 27, 2006 Decided: October 23, 2006
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deirdre H. Purdy, BAILEY & GLASSER, LLP, Charleston, West Virginia,
for Appellant. Charles T. Miller, United States Attorney,
Stephanie L. Haines, Assistant United States Attorney, William P.
Margelis, Third Year Law Student, Huntington, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Minter, Sr. appeals his sentence at the low end of
his advisory guideline range to forty-one months in prison and
three years of supervised release after pleading guilty to
distributing a quantity of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (2000). On appeal, Minter contends the district court
violated the Due Process Clause of the Fifth Amendment by finding
his relevant conduct and determining his advisory range based on a
preponderance of the evidence. We affirm.
We will affirm the sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
A sentence within a properly calculated advisory guideline range is
presumptively reasonable. United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). This
presumption can only be rebutted by showing the sentence is
unreasonable when measured against the factors under 18 U.S.C.
§ 3553(a) (2000). United States v. Montes-Pineda, 445 F.3d 375,
379 (4th Cir. 2006), pet. for cert. filed, ___ U.S.L.W. ___ (July
21, 2006) (No. 06-5439). In considering the district court’s
calculation of the advisory range, we review its factual findings
for clear error and its legal conclusions de novo. United
States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).
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As we have recognized, judges continue to base sentencing
decisions after United States v. Booker, 543 U.S. 220 (2005), on a
preponderance of the evidence. See United States v. Morris, 429
F.3d 65, 72 (4th Cir. 2005). Moreover, a district court’s findings
by a preponderance of the evidence after Booker do not violate the
Due Process Clause. See United States v. Okai, 454 F.3d 848, 851-
52 (8th Cir. 2006); United States v. Vaughn, 430 F.3d 518, 525 (2d
Cir. 2005), cert. denied, Lindo v. United States, 126 S. Ct. 1665
(2006). Because Minter’s sentence was within a properly calculated
advisory guideline range, and he has not rebutted the presumption
of reasonableness, we conclude the sentence is reasonable.
Accordingly, we affirm Minter’s sentence. 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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