                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4644



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


FRANCISCO FROYLAN TELLO-NICIO,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:05-cr-00218-F)


Submitted:   July 6, 2007                 Decided:   August 6, 2007


Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Deborrah L. Newton, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Francisco Froylan Tello-Nicio appeals from his thirty-

seven month sentence entered following a jury verdict convicting

him of possession of a firearm by an illegal alien.                  Tello-Nicio

challenges the calculation of his advisory Guidelines range and

asserts that his sentence was unreasonable.              We affirm.

           Tello-Nicio first contends that the district court erred

by considering acquitted conduct in determining his offense level

under the Sentencing Guidelines. However, a district court is free

at   sentencing       to   consider    acquitted       conduct   proved      by    a

preponderance of the evidence, even after United States v. Booker,

543 U.S. 220 (2005).        See United States v. Duncan, 400 F.3d 1297,

1304-05 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005); United

States v. Williams, 399 F.3d 450, 453-54 (2d Cir. 2005).                          The

district court’s finding that Tello-Nicio was responsible for

certain marijuana shipments and that a firearm was possessed during

his relevant conduct is reviewed for clear error.                    See United

States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S.

Ct. 2309 (2006); see also United States v. McAllister, 272 F.3d

228, 233-34 (4th Cir. 2001) (holding that firearm enhancement

applies   when    a   weapon   was    possessed   in    connection    with    drug

activity that was part of the relevant conduct).                 Based on the

undisputed trial testimony that Tello-Nicio signed for a marijuana

shipment and possessed a firearm that was found in his room near a


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plastic bag with marijuana residue and a fabric softener sheet, we

conclude that the district court did not clearly err in calculating

Tello-Nicio’s offense level.

           Next, Tello-Nicio contends that the district court should

have   granted   him   an   acceptance      of   responsibility   adjustment,

because at trial he admitted that he was an illegal alien in

possession of a firearm, the only count of which he was convicted.

We review the district court’s fact-based decision not to grant an

acceptance of responsibility reduction for clear error and give

great deference to the district court’s conclusions as “that court

is in a unique position to assess the defendant’s motives and

genuineness.”     See United States v. Hicks, 368 F.3d 801, 808 (7th

Cir. 2004).

           In    deciding    whether   an    acceptance   of   responsibility

adjustment is warranted, the sentencing court should consider

whether   the    defendant    has   truthfully      admitted   “the   conduct

comprising the offense(s) of conviction, and truthfully admitt[ed]

or not falsely den[ied] any additional relevant conduct for which

the defendant is accountable under § 1B1.3 (Relevant Conduct).”

U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.1(a) (2005).

Application Note 1(a) also advises that a defendant need not

“volunteer, or affirmatively admit, relevant conduct beyond the

offense of conviction in order to obtain a reduction,” and “may

remain silent in respect to relevant conduct beyond the offense of


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conviction      without        affecting     his      ability       to     obtain      a

reduction. . . .”        Id.     But “a defendant who falsely denies, or

frivolously contests, relevant conduct that the court determines to

be true has acted in a manner inconsistent with acceptance of

responsibility[.]”        Id.

              While in rare circumstances a defendant may exercise his

right to trial and still receive an adjustment for acceptance of

responsibility, see United States v. Harriott, 976 F.2d 198, 200-02

(4th Cir. 1992), this is not such a case.              Here, Tello-Nicio denied

his involvement with drugs at trial and at sentencing.                      Given the

fact   that    he    accepted    delivery    for     over   twenty       kilograms    of

marijuana,     the    district    court’s    conclusion      that     Tello-Nicio’s

testimony falsely denied his relevant conduct was not clear error.

Moreover, if Tello-Nicio wished to limit his appearance at trial to

certain counts, he was obligated to make that known ahead of time,

so that the Government would not waste resources.                    See Hicks, 368

F.3d at 809 (7th Cir. 2004).                Accordingly, the district court

correctly determined that Tello-Nicio was not entitled to an

acceptance of responsibility adjustment.

              Finally,    Tello-Nicio       argues    that    his    sentence        was

unreasonably harsh, given that the jury acquitted him of most of

the conduct for which he was held responsible at sentencing.

Tello-Nicio also contends that his was a unique case, because the




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Government’s own witness exonerated him of responsibility for some

of the charged crimes.

             We review a post-Booker sentence “to determine whether

the sentence is within the statutorily prescribed range and is

reasonable.”        United States v. Moreland, 437 F.3d 424, 433 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006).         “[A] sentence within

the proper advisory Guidelines range is presumptively reasonable.”

United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).              “[A]

defendant can only rebut the presumption by demonstrating that the

sentence is unreasonable when measured against the [18 U.S.C.A.

§ 3553(a)]    [(West 2000 & Supp. 2007)] factors.”          United States v.

Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006), cert. denied, 127

S. Ct. 3044 (2007).

             Tello-Nicio’s sentence, in the middle of his Guideline

range, was presumptively reasonable.           In addition, the district

court stated that it considered the § 3553 factors.           Moreover, the

acquitted conduct challenged by Tello-Nicio and considered by the

court was supported by substantial evidence.                To ignore such

evidence would neither promote respect for the law nor provide just

punishment, as required by § 3553.          Thus, we conclude that Tello-

Nicio has failed to rebut the presumption that his sentence was

reasonable.

             Accordingly,    we   affirm    Tello-Nicio’s    sentence.     We

dispense     with    oral   argument,   because    the   facts   and     legal


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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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