UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5022
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WARREN SANDERS, a/k/a New York Mike, a/k/a
Charlie Brown, a/k/a William McKinney,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:03-cr-00086)
Submitted: September 26, 2007 Decided: October 16, 2007
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
John H. Tinney, Jr., James K. Tinney, THE TINNEY LAW FIRM, PLLC,
Charleston, West Virginia, for Appellant. Charles T. Miller,
United States Attorney, Miller A. Bushong, III, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Warren Sanders appeals the 235-month sentence he received
for distribution of more than five grams of cocaine base (crack),
21 U.S.C.A. § 841(a), (b)(1)(B) (West 2000 & Supp. 2007), after we
remanded his case for resentencing consistent with United States v.
Booker, 543 U.S. 220 (2005). Sanders contends that the district
court violated his Sixth Amendment rights by determining his
sentence based on drug quantities which he did not admit during his
guilty plea. We affirm.
Sanders maintains that the district court erred in
calculating his offense level based on relevant conduct that was
more than the 12.8 grams of crack he admitted distributing at the
guilty plea hearing. He argues that the district court failed to
distinguish between statutory Booker error (applying the guidelines
as mandatory rather than advisory) and Sixth Amendment Booker error
(imposing a sentence above the maximum authorized based on facts
either admitted by the defendant or proved to a jury). He relies
on United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), and
United States v. Milam, 443 F.3d 382 (4th Cir. 2006). However,
both of these decisions deal with sentences imposed before Booker.
After Booker, a district court is no longer bound by the
range prescribed by the sentencing guidelines. Cunningham
v. California, 127 S. Ct. 856, 875 (2007); United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). However, in imposing a sentence
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post-Booker, courts still must calculate the applicable guideline
range after making the appropriate findings of fact and consider
the range in conjunction with other relevant factors under the
guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). We will affirm a post-Booker
sentence if it “is within the statutorily prescribed range and is
reasonable.” Id. at 433 (internal quotation marks and citation
omitted).
Because Sanders was sentenced on remand under an advisory
guideline scheme, the district court did not violate the Sixth
Amendment by making factual findings as to drug quantity by a
preponderance of the evidence. United States v. Morris, 429 F.3d
65, 72 (4th Cir. 2005), cert. denied, 127 S. Ct. 121 (2006).
We therefore affirm the sentence imposed by 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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