UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4648

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DANA SANDER,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. William L. Osteen, District

Judge. (CR-03-142)

Submitted: March 29, 2006 Decided: April 27, 2006

Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,

North Carolina, for Appellant. Anna Mills Wagoner, United States

Attorney, L. Patrick Auld, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

The court eliminated a two-level enhancement for possession

of a dangerous weapon, USSG § 2D1.1(b)(1), refused Sander a minor

role adjustment, USSG § 3B1.2, and gave her a three-level

adjustment for acceptance of responsibility, USSG § 3E1.1. The

advisory guideline range was 151-188 months.

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PER CURIAM:

Dana Sander pled guilty to conspiracy to distribute more

than 50 grams of cocaine base (crack), 21 U.S.C. § 846 (2000), and

was sentenced initially to a term of 210 months imprisonment. In

her initial appeal, Sander challenged the district court’s

determination that she was responsible for 145 grams of crack. We

affirmed her sentence, United States v. Calloway, 108 F. App’x 810

(4th Cir. 2004) (No. 03-4906), but granted rehearing, vacated the

sentence, and remanded for resentencing in accordance with United

States v. Booker, 543 U.S. 220 (2005), and United States v. Hughes,

410 F.3d 540 (4th Cir. 2005). On remand, the district court again

found that Sander was responsible for 145 grams of crack,* and

sentenced her to a term of 160 months imprisonment. In this

appeal, Sander again challenges her sentence, contending that the

district court violated this court’s remand order and the Sixth

Amendment by determining the drug quantity by a preponderance of

the evidence. Sander also argues that the district court’s finding

was clearly erroneous. We affirm.

The Supreme Court held in Booker that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court
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by a preponderance of the evidence violated the Sixth Amendment.

The Court remedied the constitutional violation by making the

guidelines advisory. Hughes, 401 F.3d at 546 (citing Booker, 543

U.S. at 245). After Booker, sentencing courts must calculate the

appropriate guideline range after making findings of fact, consider

the range in conjunction with other relevant factors under the

guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and

impose a sentence. Hughes, 401 F.3d at 546. This court will

affirm the sentence if it is “within the statutorily prescribed

range . . . and is reasonable.” Id. at 546-47. 

The district court did not err on remand in using the

preponderance of the evidence standard to assess drug quantity

while applying the guidelines as advisory. See United States v.

Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005)(Booker’s remedy

demonstrates that judicial fact finding by a preponderance of the

evidence is unconstitutional only when it results in a mandatory

increase in the defendant’s sentence); United States v. Mares, 402

F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005)

(same).

Although Sander relies on United States v. Collins, 415

F.3d 304 (4th Cir. 2005), Collins is readily distinguishable.

Collins was convicted of conspiracy to distribute more than fifty

grams of crack; however, the district court did not instruct the

jury to determine the quantity of crack attributable to Collins
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individually as required under Apprendi v. New Jersey, 530 U.S. 466

(2000), and United States v. Promise, 255 F.3d 150 (4th Cir. 2001).

Collins, 415 F.3d at 314. The district court then compounded the

error by attributing to Collins for sentencing purposes the amount

of crack distributed by the whole conspiracy and applying the

mandatory minimum ten-year sentence prescribed in 21 U.S.C.A.

§ 841(b)(1)(A) (West 1999 & Supp. 2005). Id.. In contrast, Sander

pled guilty to conspiracy to distribute more than fifty grams of

crack, reserving her right to contest the quantity of crack

attributed to her for sentencing purposes. On remand, the district

court cured the Sixth Amendment error that occurred in the first

sentencing by making its fact findings within the context of an

advisory guidelines system. For the reasons we explained in

Sander’s first appeal, the district court did not clearly err in

finding that Sander was responsible for 145 grams of crack.

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