UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4537

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RUFUS FELDER CUNNINGHAM, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (1:05-cr-00460-JCC)

Submitted: January 18, 2007 Decided: January 22, 2007

Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sol Z. Rosen, Kenneth M. Robinson, Washington, D.C., for Appellant.

LeDora Knight, Assistant United States Attorney, Alexandria,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*Cunningham also claims that the officer improperly frisked

him. However, because no evidence was discovered during the

pat-down, we do not address this contention.

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PER CURIAM:

Rufus F. Cunningham pled guilty to conspiracy to

distribute fifty grams or more of cocaine base and five kilograms

or more of cocaine, and to conspiracy to import five kilograms or

more of cocaine. On appeal, he challenges the denial of his motion

to suppress and asserts that the district court improperly

calculated his guideline offense level. We affirm.

Cunningham first contends that the evidence seized from

his vehicle should have been suppressed because he was stopped

without probable cause and the vehicle was searched without any

basis. Prior to the stop, the officer observed Cunningham cross

the “rumble strips” on two occasions and enter the emergency lane.

Following the vehicle stop, the officer questioned Cunningham about

his travel plans and ordered him out of the car. The officer then

had a canine sniff the vehicle for drugs. After the dog “alerted”

to the presence of drugs in the car, the officer searched the

vehicle and recovered a quantity of cocaine. We conclude that the

officer’s actions did not violate the Fourth Amendment.*

 See

United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993)

(observation of a traffic violation gives an officer probable cause

to stop a vehicle); Pennsylvania v. Mimms, 434 U.S. 106, 110-11

(1977) (a police officer may order the driver of a lawfully stopped
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car out of his vehicle as a matter of course); United States v.

Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005) (officer may

properly question stopped motorist about travel plans); Illinois v.

Caballes, 543 U.S. 405, 409 (2005) (a dog sniff conducted during a

lawful traffic stop does not violate the Fourth Amendment, and a

positive dog alert for the presence of drugs may provide probable

cause to search the vehicle).

Turning to Cunningham’s sentence challenge, he contends

that the district court erred under United States v. Booker, 543

U.S. 220 (2005), in calculating his advisory guideline range using

facts found by a preponderance of the evidence rather than beyond

a reasonable doubt. Cunningham is mistaken; a preponderance of the

evidence was the proper standard of proof. See United States v.

Morris, 429 F.3d 65, 72 (4th Cir. 2005) (noting that Booker did

“not in the end move any decision from judge to jury, or change the

burden of persuasion”), cert. denied, 127 S. Ct. 121 (2006). 

Accordingly, we affirm Cunningham’s convictions 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