UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4487
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DIONNE JAY LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:07-cr-00090-IMK-JSK-1)
Submitted: May 21, 2009 Decided: May 26, 2009
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Assistant Federal Public Defender,
Clarksburg, West Virginia, for Appellant. Sharon L. Potter,
United States Attorney, Zelda E. Wesley, Assistant United States
Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dionne Lewis was convicted on a straight-up guilty
plea of possession with intent to distribute crack cocaine, in
violation of 18 U.S.C. § 841(a)(1) (2006) (Count One), and
distribution of crack cocaine, in violation of 18 U.S.C.
§ 841(b)(1)(C) (2006) (Counts Two and Three). The district
court sentenced Lewis to sixty-eight months’ imprisonment on
each count, to be served concurrently, and three years of
supervised release on each count, to be served concurrently.
Lewis appeals, claiming his sentence is unreasonable because it
was based upon facts found at sentencing that were not admitted
by Lewis and not found by a jury beyond a reasonable doubt,
which increased his sentence in violation of the Sixth Amendment
and Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically,
he asserts error in the district court’s determination of
relevant drug conduct of between thirty-five and fifty grams of
crack cocaine. We affirm.
Lewis’ claim is foreclosed by United States v. Booker,
543 U.S. 220 (2005), and its progeny. After 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
§ 3553(a). See Gall v. United States, 128 S. Ct. 586, 596
(2007). We will review a sentence for reasonableness under an
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abuse-of-discretion standard regardless of whether the sentence
imposed is inside or outside of the guidelines range. Id. at
591; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Under an advisory guidelines scheme, a district court does not
violate the Sixth Amendment by making factual findings as to
sentencing factors by a preponderance of the evidence as long as
the fact-finding does not enhance the sentence beyond the
maximum term specified in the substantive statute. See United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding that
“Booker does not in the end move any decision from judge to
jury, or change the burden of persuasion”) (internal quotation
marks omitted). District courts are authorized and required to
make factual determinations relative to sentencing. See Rita v.
United States, 127 S. Ct. 2456, 2465-66 (2007) (noting that the
Supreme Court’s “Sixth Amendment cases do not automatically
forbid a sentencing court to take account of factual matters not
determined by a jury and to increase the sentence in
consequence.”).
Here, the district court properly calculated the
applicable Guidelines range, taking into consideration the facts
set forth in the Presentence Investigation Report, as well the
testimony and credibility of six witnesses who testified at
sentencing, in its determination that Lewis was responsible for
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between thirty-five and fifty grams of crack cocaine. * After
calculating an advisory guideline range, the district court
fully considered the factors set forth in 18 U.S.C. § 3553(a)
(2006), as required by law, and sentenced Lewis to a within
guidelines sentence, which is entitled to a presumption of
reasonableness on appeal. United States v. Go, 517 F.3d 216,
218 (4th Cir. 2008); Rita, 127 S. Ct. at 2465. We find no error
in the district court’s determination of Lewis’ sentence and
find no merit to Lewis’ Sixth Amendment argument.
Accordingly, we deny Lewis' motion to file a pro se
brief, and affirm Lewis’ conviction and 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
*
We will not review the district court’s determinations as
to the credibility of witnesses. See United States v. Locklear,
829 F.2d 1314, 1317 (4th Cir. 1987).
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