UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5062

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES RANDAL COPE, a/k/a rc5_20012000,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Bryson City. Lacy H. Thornburg,

District Judge. (2:07-cr-00003-LHT-1)

Submitted: July 24, 2008 Decided: September 3, 2008

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Matthew R. Segal, Raquel K.

Wilson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,

Asheville, 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

James Randal Cope appeals his 180-month sentence after

pleading guilty to one count of using interstate commerce to coerce

and entice a minor to engage in illegal sexual activity, in

violation of 18 U.S.C. § 2422(b) (2000) and two counts of receiving

child pornography, in violation of 18 U.S.C. § 2252(a)(2) (2000).

On appeal, Cope contends that the district court violated the Sixth

Amendment by relying on judge-found facts that increased the

maximum guidelines sentence. We affirm.

We review Cope’s sentence under a deferential abuse-ofdiscretion standard. See Gall v. United States, 128 S. Ct. 586,

590 (2007). The first step in this review requires us to ensure

that the district court committed no significant procedural error,

such as improperly calculating the guideline range. United States

v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct.

2525 (2008). In assessing the district court’s guideline

application, we review the court’s factual findings for clear error

and its legal conclusions de novo. United States v. Allen, 446

F.3d 522, 527 (4th Cir. 2006). We then consider the substantive

reasonableness of the sentence, taking into account the totality of

the circumstances. Gall, 128 S. Ct. at 597. We presume a sentence

within a properly calculated guideline range is reasonable. United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
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At his guilty plea hearing, Cope acknowledged that he

faced a mandatory minimum sentence of ten years up to a maximum of

life in prison as a result of his plea. The probation officer

determined that Cope’s advisory guideline range was 168 to 210

months in prison. Cope objected to the calculation of his advisory

guideline range based on facts neither found by a jury beyond a

reasonable doubt nor admitted by him at his guilty plea hearing,

and to any enhancement beyond the base offense level. While he did

not dispute any fact contained in the presentence report, he also

did not stipulate to any facts beyond those establishing a factual

basis for his guilty plea, contending his Sixth Amendment rights

would be violated by the district court’s fact-finding by a

preponderance of the evidence. 

Based on Cope’s stipulation that the Government’s witness

would testify to all the facts contained in the presentence report,

the district court overruled his objection and adopted the report

without change. Although the probation officer suggested that an

upward departure may be warranted under U.S. Sentencing Guidelines

Manual § 2G2.2 comment. (n.6) (2006) based on Cope’s sexual abuse

of his stepdaughter, and the Government argued that a sentence at

the high end of the guideline range was appropriate based on the

factors under 18 U.S.C. § 3553(a) (2000), the district court

sentenced Cope to 180 months in prison. On appeal, he contends his

sentence violates the Sixth Amendment because it “would have been
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unreasonable” absent the facts found by the district court by a

preponderance of the evidence. However, Cope does not contend that

his sentence is based on clearly erroneous facts, that the district

court erred in calculating his advisory guideline range based on

those facts, or that his sentence is unreasonable based on those

facts. His “one and only claim on appeal is an as-applied Sixth

Amendment challenge” based on the district court’s use of judgefound facts in calculating his advisory guideline range. 

We find no Sixth Amendment error. After calculating the

maximum statutory penalty based on a jury verdict or guilty plea,

a sentencing court may make factual findings by a preponderance of

the evidence when calculating a defendant’s advisory guideline

range. See United States v. Benkahla, 530 F.3d 300, 312 (4th Cir.

2008); United States v. Revels, 455 F.3d 448, 451 n.2 (4th Cir.

2006); United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005);

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Cope’s

sentence is within both the statutorily prescribed range and a

properly calculated guideline range, and Cope has failed to rebut

the presumption that his sentence is reasonable.

Accordingly, we affirm the district court’s judgment. 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