UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4450
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO DEMONTA HARVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (4:03-cr-00088-H-4)
Submitted: February 26, 2007 Decided: March 29, 2007
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Demonta Harvey was convicted in 2004 for
conspiracy to distribute and possess with intent to distribute
cocaine base and other related drug trafficking offenses. He was
sentenced to a term of 360 months of imprisonment. We affirmed
Harvey’s convictions, but vacated and remanded his sentence in
light of United States v. Booker, 543 U.S. 220 (2005). See United
States v. Harvey, 159 F. App’x 451 (4th Cir. 2005) (unpublished).
On remand the district court imposed the alternative sentence of
240 months that it had announced at the first sentencing hearing.
Harvey again appealed his sentence, contending that it was
unreasonable because (1) he was sentenced in violation of the Sixth
Amendment and (2) his sentence was based upon evidence lacking
reliability. For the reasons set forth below, we affirm.
Harvey first contends that his Sixth Amendment rights
were violated because his sentence was based, in part, upon
findings made by the district court by a preponderance of the
evidence. Relying on a dissenting opinion in United States v.
Booker, 543 U.S. 220 (2005), he argues that sentencing must be
predicated only upon facts found by a jury beyond a reasonable
doubt. Harvey’s argument ignores the majority opinions in Booker.
Booker held that the mandatory manner in which the federal
sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
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of the evidence violated the Sixth Amendment. 543 U.S. at 233-34.
As we have previously explained, however, the court remedied the
constitutional violation not by requiring sentencing facts to be
found by a jury beyond a reasonable doubt, but by making the
Guidelines advisory rather than mandatory. See, e.g., United
States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006); United States v. Hughes, 401 F.3d 540, 546-56
(4th Cir. 2005). Thus, because the Guidelines are now advisory
rather than mandatory, “Booker does not in the end move any
decision from judge to jury, or change the burden of persuasion
. . . . [D]ecisions about sentencing factors will continue to be
made by judges, on the preponderance of the evidence.” United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied,
127 S. Ct. 121 (2006) (quoting McReynolds v. United States, 397
F.3d 479, 481 (7th Cir.), cert. denied, 125 S. Ct. 2559 (2005)).
Here, the district court’s post-Booker sentencing
appropriately treated the Guidelines as advisory. The sentencing
court properly made factual findings concerning sentencing factors,
including drug quantity, by a preponderance of the evidence. The
court sentenced Harvey after considering and examining the
sentencing guidelines and the § 3553(a) factors, as instructed by
Booker. Further, Harvey’s sentence is well below the 360-month
minimum guideline sentence. We thus reject any suggestion that
Harvey’s Sixth Amendment rights were infringed.
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Harvey also contends that the district court erred by
basing his sentence on evidence that was unreliable, specifically
regarding testimony about drug quantity. The district court relied
upon information in the presentence investigation report, which it
independently found credible and reliable, and testimony admitted
at trial. The district court did not abuse its discretion in
relying on this evidence.
For these reasons, we find Harvey’s sentence reasonable
and affirm it. 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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