UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5162

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES EDWARD BYRD, III,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Richard L. Voorhees,

District Judge. (3:01-cr-00178-1)

Submitted: June 25, 2007 Decided: July 13, 2007

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Don Willey, Jefferson, North Carolina, for Appellant. Gretchen

C.F. Shappert, United States Attorney, Charlotte, North Carolina;

Amy E. Ray, Assistant United States Attorney, Asheville, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Vacated by Supreme Court, Janaury 14, 2008
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PER CURIAM:

In a prior appeal, we affirmed James Edward Byrd, III’s

conviction for conspiracy to distribute and possess with intent to

distribute more than fifty grams of crack cocaine, in violation of

21 U.S.C. § 846 (2000), vacated his 360-month sentence in light of

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

resentencing. On remand, the district court concluded that our

decision in United States v. Collins, 415 F.3d 304, 311-15 (4th

Cir. 2005), dictated a statutory maximum sentence of 240 months of

imprisonment. In accordance with Booker, the district court

calculated an advisory sentencing guideline range that exceeded the

statutory maximum. Thus, the statutory maximum became the advisory

guideline range. See U.S. Sentencing Guidelines Manual § 5G1.1(a)

(2005). The district court resentenced Byrd to a 240-month

sentence. Byrd appeals, contending that the district court

violated his Sixth Amendment rights at sentencing. Finding no

reversible error, we affirm.

Byrd asserts on appeal that the presumption of

reasonableness this court affords sentences within a properly

calculated guideline range, see United States v. Green, 436 F.3d

449 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006), is

unconstitutional and amounts to a de facto mandatory guidelines

scheme. Byrd contends that the district court improperly relied on

facts not found by a jury beyond a reasonable doubt or admitted by
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him, in violation of his Sixth Amendment rights. Finally, Byrd

asserts that his sentence is unreasonable because the district

court placed undue weight on the advisory guideline range that was

calculated based upon conduct not admitted by him and the court did

not consider his post-conviction rehabilitative efforts.

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

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). This Court 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 Byrd 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).

Moreover, although Byrd contends that the presumption of
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reasonableness this court affords a post-Booker sentence imposed

within a properly calculated guidelines range is unconstitutional,

the Supreme Court has recently rejected such a claim. Rita v.

United States, __ U.S. __, 2007 WL 1772146, at *6-*11 (U.S. June

21, 2007) (No. 06-5754) (upholding application of rebuttable

presumption of reasonableness of within guidelines sentence). To

the extent that Byrd alleges the district court failed to take into

account all of the § 3553(a) factors before imposing sentence, the

record belies his claim. Although the district court did not

discuss explicitly every § 3553(a) factor on the record, it was not

required to do so. United States v. Johnson, 445 F.3d 339, 345

(4th Cir. 2006). 

Our review of the record therefore leads us to conclude

that the district court appropriately treated the guidelines as

advisory. The court considered the advisory guideline range along

with the factors in § 3553(a), taking into account the arguments

from Byrd and his counsel about Byrd’s employment history before

his arrest and his successful completion of many programs during

his incarceration. The court ultimately imposed the statutory

maximum sentence. Nothing in the record demonstrates that Byrd has

rebutted the presumption of reasonableness. 

Accordingly, we affirm Byrd’s sentence. We dispense with

oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED