UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5292

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

STEVEN TODD ASHWORTH,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. David A. Faber, District

Judge. (2:03-cr-00278)

Submitted: August 3, 2007 Decided: September 6, 2007

Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Donald L. Stennett, Charleston, West Virginia, for Appellant.

Charles T. Miller, United States Attorney, R. Gregory McVey,

Assistant United States Attorney, Huntington, West Virginia, for

Appellee. 

Unpublished opinions are not binding precedent in this circuit.
*

Ashworth did not immediately appeal his sentence. However,

in December 2006, the district court granted Ashworth’s motion to

vacate pursuant to 28 U.S.C. § 2255 (2000), on the ground that he

had been denied an appeal. An amended judgment order was entered

on December 6, 2006. Ashworth noted a timely appeal from the

amended judgment. 

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PER CURIAM:

Steven Todd Ashworth appeals the sentence of 121 months

imprisonment he received after his case was remanded for

resentencing. United States v. Ashworth, 139 F. App’x 525, 527

(4th Cir.), cert. denied, 126 S. Ct. 765 (2005). Ashworth was

tried for conspiracy to manufacture methamphetamine and

distribution of methamphetamine, and acquitted of the conspiracy

charge. At the first sentencing, the district court excluded from

consideration all evidence of methamphetamine quantities apart from

the methamphetamine Ashworth was convicted of distributing, and

sentenced him to sixteen months imprisonment. 

On remand, the district court calculated the advisory

guideline range based on all Ashworth’s relevant conduct that

included quantities of methamphetamine associated with the

conspiracy.* In this appeal, Ashworth does not challenge the

district court’s determination that his involvement in the

conspiracy was shown by a preponderance of the evidence. He argues

that the district court violated his Fifth and Sixth Amendment

rights by considering conduct of which he was acquitted in

determining his sentence.
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We review a sentence for reasonableness. United States

v. Booker, 543 U.S. 220 (2005); United States v. Hughes, 401 F.3d

540, 546-47 (4th Cir. 2005). After Booker, the sentencing court

must calculate the appropriate advisory guideline range by making

any necessary factual findings. United States v. Moreland, 437

F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).

The court should then consider the resulting advisory guideline

range in conjunction with the factors set out in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2007), and determine an appropriate

sentence. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.

2006). A sentence within a properly calculated advisory guideline

range is presumptively reasonable. United States v. Johnson, 445

F.3d 339, 341 (4th Cir. 2006); see Rita v. United States, 127 S.

Ct. 2456, 2462-68 (2007) (upholding presumption). 

After Booker, the sentencing court continues to make

factual findings concerning sentencing factors 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). Moreover,

long-standing authority has permitted the sentencing court to

consider any evidence at sentencing that “has sufficient indicia of

reliability,” see USSG § 6A1.3(a), including “conduct underlying

[an] acquitted charge, so long as that conduct has been proved by

a preponderance of the evidence.” United States v. Watts, 519 U.S.
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148, 156-57 (1997) (per curiam); United States v. Montgomery, 262

F.3d 233, 249 (4th Cir. 2001). 

Ashworth argues that dicta in Booker casts doubt on the

continuing validity of Watts. He asserts that the Supreme Court ’s

decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely

v. Washington, 542 U.S. 296 (2005), and Booker seem to indicate

that facts that increase the sentence beyond the statutory maximum

permissible based solely on admitted facts or the jury’s verdict

must “satisfy a more stringent proof requirement” than

preponderance of the evidence. He acknowledges that the remedial

portion of Booker specifically rejected this approach, see Booker,

543 U.S. at 246, but argues that it does not remedy the Sixth

Amendment violation in his case because it is “counterintuitive”

and “illogical.” In Rita, however, the Supreme Court observed that

its “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.” 127 S. Ct. at 2465-

66.

Ashworth concedes that his position is contrary to our

previous unpublished opinion in his own case and case law from

other circuits. See United States v. Dorcely, 454 F.3d 366, 371

(D.C. Cir.) (“a sentencing court may base a sentence on acquitted

conduct without offending the defendant's Sixth Amendment right to

trial by jury”), cert. denied, 127 S. Ct. 691 (2006); United
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States v. Vaughn, 430 F.3d 518, 525-27 (2d Cir. 2005), cert.

denied, 547 U.S. 1060 (2006); United States v. Price, 418 F.3d 771,

787-88 (7th Cir. 2005); United States v. Magallanez, 408 F.3d 672,

684-85 (10th Cir.), cert. denied, 126 S. Ct. 468 (2005); United

States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert. denied,

126 S. Ct. 432 (2005). Moreover, the district court was not free

to disregard our directions. United States v. Bell, 5 F.3d 64, 66-

67 (4th Cir. 1993) (setting out mandate rule). We discern no error

in the sentence imposed by the district court on remand, and

conclude that it is reasonable.

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