                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5268



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KEVIN IVAN ANTHONY, a/k/a Van,

                                              Defendant - Appellant.


                            No. 05-5269



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CARLOS DEAN SCOTT, a/k/a Bink, a/k/a Binky,

                                              Defendant - Appellant.


Appeals from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-02-241)


Submitted:   September 15, 2006           Decided:   October 13, 2006


Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Troy N. Giatras, GIATRAS & WEBB, Charleston, West Virginia; Dennis
H. Curry, Spencer, West Virginia, for Appellants.      Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

               Kevin Ivan Anthony (Appeal No. 05-5268) and Carlos Dean

Scott (Appeal No. 05-5269) appeal their sentences imposed after

resentencing,* on their convictions of one count each of conspiracy

to distribute fifty grams or more of cocaine base and a quantity of

hydromorphone, and distribution of five grams or more of cocaine

base, and aiding and abetting same, in violation of 21 U.S.C.

§§ 846, 841(a)(1) (2000) and 18 U.S.C. § 2 (2000), respectively

(Anthony); and one count of conspiracy to distribute fifty grams or

more of cocaine base and a quantity of hydromorphone, and three

counts of distribution of five grams or more of cocaine base, in

violation of 21 U.S.C. §§ 846, 841(a)(1) (2000) and 18 U.S.C. § 2

(2000), respectively (Scott).         Following a resentencing hearing,

the   district     court   adopted   its     findings   from   the   original

sentencing hearing and imposed the same sentences it previously

imposed.       The district court sentenced Anthony to 324 months’

imprisonment, five years of supervised released, and ordered that

he pay a $5000 fine.        The district court sentenced Scott to 360

months’ imprisonment, five years of supervised release, and ordered

that he pay a $5000 fine.        Anthony and Scott again appeal their



           *
         This court previously affirmed Anthony’s and Scott’s
convictions, but remanded their cases to the district court for
resentencing in accordance with United States v. Booker, 543 U.S.
220 (2005), which case was decided after their original sentencing
hearing. See United States v. Anthony, No. 03-4909 (4th Cir. Jul.
12, 2005) (unpublished).

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sentences, challenging:      (1) the standard of proof used by the

district court; (2) the constitutionality and reasonableness of the

use of the 100:1 crack/powder cocaine differential in sentencing;

and (3) the district court’s imposition of the same sentence

previously imposed, and alleging that the district court’s sentence

resulted in unwarranted disparity, in violation of 18 U.S.C.A.

§ 3553(a)(6) (West 2000 and Supp. 2006).         For the reasons set forth

below, we affirm Anthony’s and Scott’s sentences.

           Appellants     first     challenge     the       district   court’s

application of a preponderance of the evidence standard of proof in

resentencing.     This assertion is without merit.              See generally

United   States   v.   Hughes,    401   F.3d   540,   546    (4th   Cir.   2005)

(“Consistent with the remedial scheme set forth in Booker, a

district court shall first calculate (after making the appropriate

findings of fact) the range prescribed by the guidelines.”); see

also United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir. 2005);

McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005);

United States v. Tabor, 439 F.3d 826, 830 (8th Cir. 2006).

           Next, Appellants challenge the constitutionality and

reasonableness of the 100:1 crack/powder cocaine differential in

the advisory guidelines in the wake of Booker. We find Appellants’

equal protection challenge to be without merit.             See, e.g., United

States v. Castillo, ___ F.3d ___, 2006 WL 2374281 (2d Cir. Aug. 16,

2006).   Moreover, as we previously have held, a sentencing court


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may not properly substitute its view of an appropriate ratio

between crack cocaine and powder cocaine for that determined by

Congress.     United States v. Eura, 440 F.3d 625, 633 (4th Cir.

2006), petition for cert. filed, June 20, 2006 (No. 05-11659).    We

decline Appellants’ invitation to revisit our decision in Eura.

The district court here did not err in refusing Appellants’ request

to substitute its own ratio for that set forth in the advisory

guidelines.    Id.

            Appellants also contend that the district court erred by

applying a “de facto mandatory Guidelines standard” in resentencing

them to the same sentence.    During the resentencing hearing, the

district judge clearly and accurately enunciated this court’s

directive on remand, as well as its statutory and legal obligations

in resentencing Appellants, considered the arguments of counsel,

and decided that its original findings did not need to be altered.

We will affirm a post-Booker sentence if it is both reasonable and

within the statutorily prescribed range.    United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005).      As Appellants’ sentences are

within the properly calculated advisory guideline range, they are

presumptively reasonable, see United States v. Green, 436 F.3d 449,

457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006), and we find

Appellants’ conclusory assertions on appeal to be insufficient to

overcome that presumption.




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          Finally, Appellants contend that the sentences imposed on

them by the district court resulted in “unwarranted disparity” in

contravention of § 3553(a)(6), as compared to those sentences

imposed on co-defendants in the same prosecution.    Merely noting

that co-defendants received lesser sentences is insufficient to

establish an unwarranted sentencing disparity, which renders a

within-Guidelines sentence unreasonable.     See United States v.

Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006).     The district

court properly rejected Appellants’ claim of disparity, as the

characteristics and circumstances of these individual Defendants

and the application of the advisory guidelines and § 3553(a)

factors to them produced the disparity, the disparity was not

unwarranted, and Appellants have failed to demonstrate error by the

district court in sentencing.

          Accordingly, we affirm Anthony’s and Scott’s sentences.

Because the district court appropriately treated the guidelines as

advisory, and properly calculated and considered the guideline

range and the relevant § 3553(a) factors, we find their sentences

to be reasonable. 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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