United States v. Minter

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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