                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4081



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


MATTHEW DICKEL,

                  Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg.  Joseph R. Goodwin,
Chief District Judge. (6:06-cr-00077-1)


Submitted:   August 29, 2008               Decided:   September 22, 2008


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew J. Katz, THE KATZ WORKING FAMILIES’ LAW FIRM, LC,
Charleston, West Virginia, for Appellant. Charles T. Miller, United
States Attorney, Steven I. Loew, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Matthew Dickel pled guilty to making a false statement

when   purchasing     a    firearm       and      being   an    unlawful     user    of    a

controlled substance in possession of a firearm.                     He was sentenced

to 180 months in prison, the statutory maximum.                         We affirm his

sentence.

            Dickel first asserts that the district court erroneously

considered    acquitted      conduct      when       applying     the   murder      cross-

reference    in   U.S.     Sentencing         Guidelines       Manual   §   2K2.1(c)(2)

(2003), while calculating his advisory guidelines range. According

to Dickel, United States v. Booker, 543 U.S. 220 (2005), prohibits

use of acquitted conduct.           However, acquitted conduct is properly

considered when calculating a guidelines range, even after Booker.

See United States v. Brika, 487 F.3d 450, 459 (6th Cir. 2007),

cert. denied, 128 S. Ct. 341 (2007); United States v. Duncan, 400

F.3d 1297, 1304-05 (11th Cir. 2005); United States v. Williams, 399

F.3d 450, 453-54 (2d Cir. 2005).

            Dickel    also       makes    a       similar,     alternative    argument,

contending that the district court was permitted, but not required,

to consider acquitted conduct.                According to Dickel, the district

court erroneously believed that it was required to consider this

conduct.      When sentencing a defendant, a district court must

properly     calculate      the     guidelines         range,      as   a    matter       of

administration       and    to    secure          nationwide     consistency.         The


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guidelines are “the starting point and the initial benchmark.”

Gall v. United States, 128 S. Ct. 586, 596 (2007).

            Here, the court considered Dickel’s relevant conduct,

heard evidence on the objections thereto, and made findings of

fact.   In calculating the guidelines range, the district court was

required to consider the relevant conduct as outlined in the

presentence report. To ignore or disregard certain evidence proven

by a preponderance of the evidence would sidestep the court’s duty

to calculate the guidelines range.        Of course, the court is free to

consider the fact that the relevant conduct was also acquitted

conduct   and   consider   that   issue   when   arriving    at   the   final

sentence.    The court is even free, as it actually did here, to

disregard the cross-reference, after it has been appropriately

calculated, should the court determine that the cross-reference

resulted in a harsher sentence than necessary.           See Kimbrough v.

United States, 128 S. Ct. 558, 575 (2007) (holding that district

court may find the guideline’s crack/powder disparity yielded a

sentence “greater than necessary” to achieve the purposes of

sentencing).

            Accordingly, although Dickel is correct in part, his

argument misses the point.        While the court is free to make an

individualized    assessment      based   on   the   facts   presented     in

determining whether an outside-guidelines sentence is warranted,

see Gall, 128 S. Ct. at 596-97, the court must first determine the


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advisory   guidelines   range   after   applying    all    the   relevant

guidelines, including the murder cross-reference.          Had the court

decided to not apply certain guidelines or to ignore relevant

conduct proved by a preponderance of the evidence, the court would

have committed significant procedural error.       See United States v.

Evans, 526 F.3d 155, 164 (4th Cir. 2008).               Accordingly, the

district court correctly considered Dickel’s acquitted conduct,

proven by a preponderance of the evidence,* when calculating his

guidelines range.

           Dickel next asserts that the district court applied the

wrong standard of proof when using evidence of his physical and

emotional abuse of his girlfriend to impose a variance sentence,

600 percent higher than the advisory guidelines range without the

murder cross-reference (which the court was hesitant to use to

justify an increased sentence, as Dickel had been acquitted of

murder by a state jury).     According to Dickel, the Supreme Court

requires that a higher standard of proof be used when judge-found

facts lead to a much longer term of incarceration.        See McMillan v.

Pennsylvania, 477 U.S. 79, 86-88 (1986) (holding that permitting a

greatly enhanced sentence under a preponderance of the evidence

standard would be tantamount to the enhancement becoming the “tail




     *
      The district   court   actually   found   these    facts   beyond   a
reasonable doubt.

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that wags the dog” of the substantive offense and would violate due

process).

            We recognized pre-Booker that the Due Process Clause

imposes some limitations on the use of sentencing factors proven

only by a preponderance of the evidence; however, we have never

defined those limits and have never declared a sentence invalid on

the basis that a sentencing factor was established by an inadequate

standard of proof.    See United States v. Hammoud, 381 F.3d 316,

354-55 (4th Cir. 2004), vacated, 543 U.S. 1097 (2005).    We decline

to address the issue in light of Booker in this case, because any

error here was harmless.     See United States v. Olsen, 519 F.3d

1096, 1106 (10th Cir. 2008) (applying harmless error review in

similar case).   The district court found beyond a reasonable doubt

that Dickel murdered his girlfriend.   The court made this finding

largely based on evidence of Dickel’s continued abuse of her and

his repeated threats.    While the court separately stated that it

made findings regarding this abuse by a preponderance of the

evidence, it is clear that under any standard of proof, the

evidence showed that Dickel repeatedly abused his girlfriend and

was a violent and dangerous person, the facts underlying the

court’s decision to impose an enhanced sentence.

            Accordingly, we affirm Dickel’s sentence.    We dispense

with oral argument because the facts and legal contentions are




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adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                          AFFIRMED




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