UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4864

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WALTER ANTHONY WEST,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (1:02-cr-00004-7)

Submitted: May 30, 2007 Decided: July 10, 2007

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. Andrew Jennings, LAW OFFICE OF W. ANDREW JENNINGS, Hickory,

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Unpublished opinions are not binding precedent in this circuit.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:

In 2002, Walter Anthony West was convicted of

participating with six co-defendants in a conspiracy to distribute

fifty grams or more of methamphetamine. West was sentenced to 240

months imprisonment after the district court found him responsible

for fifty grams or more of actual methamphetamine, which yielded a

base offense level of 32 under U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(4) (2001). With increases for discharge of hazardous

substances, USSG § 2D1.1(b)(5)(A), and a managerial role, USSG

§ 3B1.1(b), the initial guideline range was 235-293 months. We

affirmed the conviction and sentence, United States v. West, 98 F.

App’x 259 (4th Cir. 2004), but after its decision in United

States v. Booker, 543 U.S. 220 (2005), the Supreme Court granted

certiorari and remanded West’s case. We vacated his sentence and

remanded his case for resentencing consistent with Booker, noting

that the district court’s factual findings concerning the drug

quantity resulted in Sixth Amendment error under the mandatory

guideline scheme in use at West’s first sentencing. United

States v. West, 178 F. App’x 320 (4th Cir. 2006). On remand, the

district court made the same findings, but imposed a sentence of

168 months. The lower sentence resulted from the district court’s

mistaken belief that it could not make factual findings by a

preponderance of the evidence concerning the drug amount under an

advisory guideline scheme. West appeals his sentence. We affirm.
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We first find no Sixth Amendment error in the sentence

imposed on remand. West was sentenced under an advisory guideline

scheme. Consequently, the district court did not violate the Sixth

Amendment by making factual findings concerning West’s role and

discharge of hazardous substances 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).

As in the first appeal, we conclude that the district

court did not clearly err in applying an enhancement for “unlawful

discharge, emission, or release of a hazardous or toxic substance.”

We also conclude that the record supports the district court’s

application on remand of a four-level adjustment for having a

leader or organizer role in the offense. The district court

applied a three-level adjustment for a manager or supervisor role

at the first sentencing, and did not explain its change of heart at

the resentencing hearing. However, we may affirm a sentence

enhancement for any reason appearing in the record. United

States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001) (appeals court

may “affirm [sentence enhancement] on the basis of ‘any conduct [in

the record] that independently and properly should result in an

increase in the offense level’ by virtue of the enhancement”

(quoting United States v. Ashers, 968 F.2d 411, 414 (4th Cir.

1992)). West correctly argues that he and his co-defendants were

a loosely associated group of methamphetamine users and sellers.
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However, West not only used and distributed methamphetamine, but

also manufactured it and taught two of his co-defendants to make

it. He was thus, at least for a time, the organizer and leader of

this group’s methamphetamine trafficking.

West contends that the district court’s “third

alternative sentence” of 240 months violated the Sixth Amendment

and this court’s decision in his first appeal. This claim is

meritless. The district court did not reimpose the original

240-month sentence, although the court expressed its desire to do

so and had the authority to do so under the post-Booker advisory

guideline scheme after making its factual findings. The judgment

order imposes a sentence of 168 months, and the government has not

appealed the lower sentence.

Finally, West contends that his sentence is procedurally

and substantively unreasonable. Because West was sentenced within

the guideline range, his sentence is presumptively reasonable.

United States v. Johnson, 445 F.3d 339, 344 (4th Cir. 2006).

West argues that his sentence is procedurally

unreasonable because the district court failed to address two

factors raised by his attorney under 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2007), his good record in prison and his support from

his family and employer. In announcing the sentence, the district

court did not specifically address the information put forward by

counsel, but the court did address West’s conduct in the offense
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and his criminal history to explain its decision to sentence West

at the high end of the advisory guideline range. While the court

is required to explain the sentence, see United States v.

Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006), petition for

cert. filed, July 21, 2006 (No. 05-4471), it is not required to

discuss each § 3553(a) factor. Johnson, 445 F.3d at 345. We are

satisfied that the district court sufficiently addressed West’s

history and characteristics.

West argues that his sentence is substantively

unreasonable because he is in a statistical group with a low rate

of recidivism. This is an argument with the structure of the

guidelines, which this court is not in a position to remedy. See

Johnson, 445 F.3d at 344 (defendant’s contention that guideline

provision “is unreasonable or unfair as a general matter” should be

raised with Congress or Sentencing Commission).

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