                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      March 29, 2007

                                                                Charles R. Fulbruge III
                               No. 05-20556                             Clerk
                             Summary Calendar




UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ARMANDO PEREZ,

                                         Defendant-Appellant.



                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                          No. 4:02-CR-36-5
                        --------------------



Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Armando Perez appeals the sentence imposed following his re-

sentencing for his guilty-plea conviction of aiding and abetting to

possess with intent to distribute 100 kilograms or more of mari-

huana and conspiracy to possess with intent to distribute 100

kilograms or more of marihuana.       He argues that the district court

violated his due process rights by calling and questioning a sen-


     *
        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opinion should not be published and is not precedent except under the limited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.
tencing witness to establish the amount of drugs attributable to

him as relevant conduct.       As conceded by Perez, the district court

was within its discretion to call and question a witness.                See FED.

R. EVID. 614(a), (b).      Perez has not shown that the district court

plainly erred by eliciting information from the witness and thereby

increasing the sentence. See United States v. Olano, 507 U.S. 725,

732 (1993).

     Perez claims that, assuming that the sentencing witness was

credible and the applicable standard of review was a preponderance

of the evidence, the witness’s testimony was insufficient to estab-

lish the quantity of drugs attributed to him as relevant conduct.

Even if Perez preserved this issue for appeal, he has failed to

show that the district court clearly erred in holding him re-

sponsible for the total amount of marihuana attributed to him.               See

United States v. Betancourt, 422 F.3d 240, 247 (5th Cir. 2005).

     Perez contends that the district court’s use of a mere prepon-

derance-of-the-evidence standard in assessing relevant conduct vio-

lated    his   due   process   rights   and   was   contrary   to   18    U.S.C.

§ 3553(a)(2)(A).        This argument was preserved for our review.

United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998).               The

district court can make all factual findings relevant to a post-

Booker1 guidelines sentence based on a preponderance of the evi-

dence. United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.



     1
         United States v. Booker, 543 U.S. 220 (2005).

                                        2
denied, 126 S. Ct. 43 (2005).         Perez has not provided any binding

authority for his argument that either the Due Process Clause of

the Fifth Amendment or § 3553(a)(2)(A) requires proof beyond a

reasonable doubt at sentencing.         The district court did not err in

employing the preponderance standard.

     Perez contends that he did not validly waive his right to con-

flict-free defense counsel and that his counsel’s actual conflict

of interest prejudiced him.           Because examination of the record

shows that Perez waived his right to conflict-free counsel at the

Garcia2 hearing, his challenge is barred.             See United States v.

Howton, 688 F.2d 272, 276 (5th Cir. 1982).

     Perez contends that because this court has held that a sen-

tence within a properly calculated guidelines range is reasonable

unless there is a basis for concluding the sentence was unreason-

able in light of the factors set forth in 18 U.S.C. § 3553(a), the

district court’s sentencing discretion was circumscribed, so the

sentence violates his Sixth Amendment rights.            Perez acknowledges

that this argument is foreclosed by our precedent. In any event,

post-Booker, we review sentences for unreasonableness.            The dis-

trict court examined the factors in § 3553(a) in arriving at the

sentence, and Perez has not contended that the sentence is unrea-

sonable in any respect.

     AFFIRMED.



     2
         United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).

                                       3
