                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4391



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


ISMAEL ARGUELLO FLORES, a/k/a Mike, a/k/a Mel,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00286-NCT)


Submitted:   February 11, 2008            Decided:   March 10, 2008


Before TRAXLER and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Wayne Buchanan Eads, Raleigh, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ismael Arguello Flores appeals the 245-month sentence

imposed   after    he   pled   guilty   to   one    count     of   conspiracy   to

distribute more than five kilograms of cocaine, in violation of 21

U.S.C. § 841(a)(1), (b) (2000).         On appeal, Flores argues that the

district court erred in determining the quantity of cocaine used to

determine    his   offense     level,   erred      in   imposing    a     two-level

enhancement for possession of a firearm and finding him ineligible

for the “safety valve,” and erred in denying his motion for a

downward departure.      We affirm.

            We review a sentence imposed by the district court for

reasonableness under an abuse-of-discretion standard.                      Gall v.

United States, 128 S. Ct. 586, 597 (2007).                A sentence within a

correctly calculated advisory guideline range is presumptively

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

2006); see also Rita v. United States, 127 S. Ct. 2456, 2462-69

(2007)    (upholding    presumption     of   reasonableness         for    within-

guidelines    sentence).        In   considering        the   district     court’s

application of the Guidelines, we review factual findings for clear

error and legal conclusions de novo.            United States v. Allen, 446

F.3d 522, 527 (4th Cir. 2006).

            Flores first argues that the district court violated his

Sixth Amendment rights by determining his base offense level using

a quantity of cocaine that was greater than the quantity charged in


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the indictment and admitted by Flores in his plea.      This argument

is meritless.     Following United States v. Booker, 543 U.S. 220

(2005), a sentencing court continues to make factual findings

concerning sentencing factors by a preponderance of the evidence.

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).          The

Supreme Court has stated that, in addition to making the Guidelines

advisory, Booker “also recognized that when district courts impose

discretionary sentences, which are reviewed under normal appellate

principles by courts of appeals, such a sentencing scheme will

ordinarily raise no Sixth Amendment concern.”     Rita, 127 S. Ct. at

2467.     In this case, the district court specifically noted the

advisory nature of the Guidelines and heard argument regarding the

sentencing factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2007).     We therefore conclude that the district court’s drug

quantity determination did not violate Flores’ Sixth Amendment

rights.    To the extent that Flores’ argument can be construed as a

factual    challenge   to   the   district   court’s   drug   quantity

determination, the evidence produced at sentencing amply supported

the court’s finding, which is not clearly erroneous.

            Flores next argues that the district court erred in

imposing a two-level enhancement for possession of a firearm.       He

asserts both a Sixth Amendment argument and a factual challenge.

We reject the Sixth Amendment argument for the reasons discussed

above.     The Guidelines provide for a two-level increase in a


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defendant’s base offense level “[i]f a dangerous weapon (including

a firearm) was possessed.”      USSG § 2D1.1(b)(1).      The Commentary to

§ 2D1.1 states that “[t]he adjustment should be applied if the

weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.”          USSG § 2D1.1(b)(1), cmt. n.3.

“In order to prove that a weapon was present, the Government need

show only that the weapon was possessed during the relevant illegal

drug activity.”     United States v. McAllister, 272 F.3d 228, 234

(4th Cir. 2001). The district court’s determination that a firearm

or other weapon was present and justifies the enhancement is a

factual question that is reviewed for clear error.           United States

v. Apple, 915 F.2d 899, 914 (4th Cir. 1990).             Our review of the

transcript of the sentencing hearing convinces us that the district

court did not clearly err in determining that Flores possessed

firearms in connection with cocaine trafficking, and properly

applied the two-level enhancement.

           Flores    also   asserts   error   in   the   district   court’s

determination that he was not eligible for the “safety valve” to

reduce his sentence.        18 U.S.C.A. § 3553(f) (West 2000 & Supp.

2007);   USSG   §   5C1.2   (2006).    The    district    court   correctly

determined that Flores possessed a firearm in connection with the

distribution of cocaine, and thus properly denied application of

the safety valve in determining his sentence.




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              Finally, Flores argues that the district court erred in

denying his motion for a downward departure.             He also argues that

the factors he identified in support of a departure justified a

lesser sentence under 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2007).    Because     the    record   reflects   that    the   district   court

recognized its authority to depart but concluded that a departure

was not warranted on the facts of this case, the court’s decision

is not reviewable on appeal.          United States v. Bayerle, 898 F.2d

28,   30-31    (4th   Cir.   1990).      Moreover,      contrary   to   Flores’

suggestions on appeal, the record indicates that the district court

considered the information provided by Flores and concluded it did

not justify a lesser sentence.         We find no abuse of discretion in

that decision.

              Accordingly, we affirm Flores’ sentence.             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




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