         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                 Fifth Circuit

                                                                FILED
                                                              August 21, 2008
                               No. 07-20376
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

ANTHONY ROBINSON, also known as Tony Marcel Robinson

                                         Defendant-Appellant


                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 4:00-CR-286-1


Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
     In December 2000, Anthony Robinson was found guilty by a jury of
conspiracy to possess with intent to distribute 1000 kilograms or more of
marijuana, aiding and abetting possession with intent to distribute 100
kilograms or more of marijuana, aiding and abetting possession with intent to
distribute 1000 kilograms or more of marijuana, and conspiracy to launder
monetary instruments.



     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                 No. 07-20376

      The Presentence Investigation Report (“PSR”) recommended a sentencing
range of 292 to 365 months under the Federal Sentencing Guidelines based on
upward departures for aggravated role and obstruction of justice. Robinson filed
written objections to the PSR, contending that his base offense level was
calculated using drug amounts that were not proven beyond a reasonable doubt.
He also objected to the enhancements for his leadership role and for obstruction
of justice on the ground that there was insufficient evidence to support those
enhancements. The district court found that the enhancements for leadership
role and obstruction of justice applied, but lowered the drug quantity determined
by the PSR. The district court’s findings placed Robinson’s sentence in a range
of 235 to 293 months under the Guidelines. The district court sentenced
Robinson to 235 months in prison. Robinson appealed.
      On remand for resentencing in light of the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), the district court adopted the same
findings it made at Robinson’s initial sentencing hearing.          This placed
Robinson’s sentence in the same Guidelines range, 235 to 293 months. The court
then varied the sentence downward from the Guidelines range under its post-
Booker discretion because it concluded that even a sentence at the lowest end of
the range would leave Robinson with an unfairly and unreasonably high prison
term as compared to his co-conspirators. Robinson was resentenced to 180
months of imprisonment.
      Robinson argues on his appeal of the resentencing that this court’s post-
Booker requirements that a district court use the Guidelines as a point of
reference in determining a sentence and give reasons for any significant variance
from the Guidelines’ range render the Guidelines “quasi-mandatory.”           He
contends treatment of the Guidelines as quasi-mandatory requires that
sentences be based only on facts pleaded in the indictment and proven to a jury.
See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In the case at hand, he
contends that facts supporting enhancements for his leadership role and for

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obstruction of justice should not be considered because they were not pleaded in
the indictment or proven to a jury.
      Robinson’s argument is without merit. The requirements that a district
court begin sentencing by calculating the applicable Guidelines range and then
explain any variance therefrom do not run afoul of Booker and do not render the
Guidelines “quasi-mandatory.” The Supreme Court mandates these post-Booker
procedures. See Gall v. United States, 128 S. Ct. 586, 594, 596-97 (2007); Rita
v. United States, 127 S. Ct. 2456, 2465, 2468-69 (2007). In addition, Booker
eliminated Sixth Amendment concerns that would otherwise have prohibited
sentencing judges from finding all facts relevant to sentencing. United States
v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Thus, “[t]he sentencing judge is
entitled to find by a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range . . . .” Id.; United States v.
Johnson, 445 F.3d 793, 798 (5th Cir. 2006), cert. denied, 126 S. Ct. 2884 (2006).
Accordingly, we find no error and affirm the district court.
      AFFIRMED.




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