1 The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-1709

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the District of * South Dakota. Bernard J. Drapeau, Jr., * * [UNPUBLISHED] Appellant. *

___________ Submitted: December 13, 2006 Filed: December 26, 2006

___________ Before BYE, COLLOTON, and BENTON, Circuit Judges.

___________ PER CURIAM.

Bernard J. Drapeau, Jr., appeals his se ntence imposed by the district court 1 after remand. Drapeau argues the 262-month sentence imposed is unreasonable because the district court (1) did not account for the "guideline disparity" created by the Bureau of Prison's (BOP) interpretation of good conduct credit under 18 U.S.C. § 3624(b); (2) did not vary downward from the U.S. Sentencing Guidelines (Guidelines) imprisonment range under 18 U.S .C. § 3553(a) despite his serious health-2- problems; and (3) improperly used a pr eponderance of the evidence standard in determining judicial facts used to craft his sentence. We affirm.

We previously considered Drapeau's appeal of his conviction and 324-month prison sentence for distributing a contro lled substance and possessing a controlled substance with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). See United States v. Drapeau , 414 F.3d 869 (8th Cir. 2005), cert. denied , 126 S. Ct. 1090 (2006). We affirmed his conviction but remanded the case for resentencing in light of the holding in Unite d States v. Booker , 543 U.S. 220 (2005). Drapeau , 414 F.3d at 879. On remand, the district court determined the advisory Guidelines imprisonment range was 262 to 327 months and sentenced Drapeau “to the minimum under the sentencing guideline range, 262 months of custody.”

Drapeau contends the sentencing table inthe Guidelines is "calibrated on the assumption that prisoners exhibiting good conduct would receive 15%, [or] 54 days a year, good time credit off their sentences" but the BOP only credits 12.8%, or 47 days, a year in good-time credit. As a result, he argues th e low end of his Guidelines imprisonment range was 2.2% greater than what the Guidelines actually intended and the “minimum” presumptively reasonable se ntence is actually six months lower than what the district court stated. As Drapeau did not raise this argument in the district court, we review only for plain e rror. United States v. Robinson , 462 F.3d 824, 825 (8th Cir. 2006). We need not decide th e import of the BOP's policy on Guideline ranges since, even if the applicable sent ence range were revise d as Drapeau urges to reflect the BOP's good time credit policy, Drapeau's sentence of 262 months would still fall within this proposed guideline range and would be presumptively reasonable. United States v. Lincoln , 413 F.3d 716, 717 (8th Cir.), cert. denied , 126 S. Ct. 840 (2005); accordUnited States v. Rita , 177 F. App’x 357, 358 (4 th Cir.) (unpublished per curiam) (noting a senten ce imposed within a properly calculated Guidelines range is presumptively reasonable), cert. granted , 75 U.S.L.W. 3243 (U.S. Nov. 3, 2006) (No. 06-5754). Thus, we find no plain error inthe district court's application of the guideline range.-3- Drapeau also asserts the district cour t erred in not considering his health problems when considering the factors se t forth in 18 U.S.C. § 3553(a). We review the reasonableness of a sentence for an abus e of discretion. United States v. Lee , 454 F.3d 836, 838 (8th Cir. 2006). Drapeau's se ntence within the advisory Guideline range is presumptively reasonable. To rebut this presumption, Drapeau "must show that the district court failed to consider a relevant factor that should have received significant weight, gave significant weight to an improper or irrelevant factor, or otherwise committed a clear error of j udgment." United States v. Davidson , 437 F.3d 737, 741 (8th Cir. 2006). At his resenten cing, Drapeau stated his health was deteriorating and since 1995 he had ruptured his appendix and undergone colon, bladder, and hernia surgeries. He also informed the cour t he had an existing hernia, suffered from diabetes, high blood pre ssure, and hepatitis and took several medications. In response, the district court specifically referenced the text of § 3553(a)(2)(D) concerning the medical needs of a defendant and stated, "I would hope that wherever he goes in the federa l system he's being provided with proper medical care." The court also reviewed th e other factors listed in § 3553(a). We find the district court did consider the releva nt § 3553(a) factors and did not otherwise commit a clear error of judgment in determining the sentence.

Finally, Drapeau contends the district court violated his due process rights in imposing a sentence based on drug quantities beyond those found by the jury and determined these higher quantities using a preponderance of the evidence standard of proof. Because the standard of proof at sentencing is only a preponderance of the evidence, United States v. Johnson , 450 F.3d 831, 833 (8th Cir. 2006), we find no error. Accordingly, we affirm.

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