                                                              United States Court of Appeals
                                                                       Fifth Circuit
                 IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                         FOR THE FIFTH CIRCUIT                    May 16, 2007
                         _____________________
                              No. 05-51630                   Charles R. Fulbruge III
                         _____________________                       Clerk

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee
     v.

AMY MARIE VITTEK,
                                                     Defendant-Appellant
                         ----------------------
                            Appeal from the
                      United States District Court
                   for the Western District of Texas
                             (W-04-CR-240-8)
                         ----------------------

Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

     In September 2005, Amy Vittek entered a plea of guilty,

without a written plea agreement, to possession with intent to

distribute     methamphetamine   (“meth”)   within   1,000     feet        of       a

playground, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

and 860(a).     One month later, she was sentenced to a 168-month

term of imprisonment.      Vittek appeals her sentence, contending

that (1) the quantity of drugs attributed to her was erroneous;

(2) her criminal history included an offense that should not have


     *
       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this opinion should not be published and is not precedent except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.
been    considered    in   the   calculation;     (3)   her   right   to

confrontation was violated by the use of hearsay evidence at her

sentencing; (4) she played only a minor or minimal role in the

offense and her sentence should have been adjusted to reflect

this fact; and (5) application of the United States Sentencing

Guidelines    (“U.S.S.G.”)   §   2D1.1's    six-level   enhancement   for

substantial risk of harm to the life of a minor was error.            We

affirm.

                                 I. Facts

A.     The Underlying Offense

       In September 2004, Vittek, her three year-old son, and her

son’s father were passengers in a car driven by Bradley Scott

Anderson.     After noticing the car’s expired state inspection

sticker, a Temple County police officer activated his lights to

stop the car.        Anderson did not stop, however, and a chase

ensued.    During the chase, dispatch officers advised the pursuing

police officers that a witness had seen the driver throw a gun

and plastic bag out of the vehicle’s window.            At the location

specified by the witness, officers retrieved a handgun and a

plastic bag containing a substance that appeared to be meth.

       When Anderson eventually stopped, the police searched the

car.    They found (1) inside Vittek’s purse, located at her feet,

a Marlboro 100 cigarette box containing a plastic bag of what


                                    2
appeared to be meth; (2) in the driver’s door pocket, a magazine

containing three live 9-mm rounds; (3) on the floorboard, under

Vittek’s son’s    feet,   a   plastic   jug    containing    a   liquid   that

smelled like acetone or ammonia; and (4) a videotape on “how to

produce   methamphetamine,”     produced      by   Heath   Guthrie,   showing

Anderson with a handgun, Anderson smoking meth, and Guthrie and

Anderson discussing the best way to make meth.

     Lab tests on the liquid and powdered substances seized by

the officers came back positive for meth.             The plastic bag that

had been thrown from the vehicle contained 3.9 grams of meth.1

The bag found in Vittek’s purse contained about 2.9 grams.                The

“combined field weight” was “6.8 grams which is an amount for

distribution.”2   Lab analysis on the 2.42 kilograms of liquid in

the jar determined that it contained one milligram of meth per

milliliter.

B.   Relevant Conduct

     In early 2004, a cooperating individual (“CI1”) informed



     1
          The factual basis states that this plastic bag “weighed
about 3.9 grams with packaging.”
     2
          The record contains conflicting reports of the quantities
of meth in the bags and jar. Each of the total amounts described
in the record, however, equals or exceeds five grams, the amount
charged in the indictment. In any event, Vittek does not dispute
that the underlying offense involved five grams or more of meth.
Rather, she challenges the district court’s reliance on the
relevant conduct to determine the drug quantity.

                                    3
police officers that Anderson had cooked meth from January 2000

until September 2004.         CI1 reported that Anderson used 1000 to

1200 120-mg-pseudoephedrine pills and 13 batteries at each cook.

On average, these 1000-pill cooks had yielded approximately one

ounce of meth.      Based on CI1’s information, officers estimated

that,    between    January      2000   and   September      2004,    Anderson

participated in about 576 meth cooks that produced a total of 576

ounces of meth.3

     CI1   stated    that     Vittek    participated    in    the    cooks    by

contributing such items as “white gas, funnels, and filters for

the cooks,” and by “bust[ing] blister packs” for Anderson.                   Both

CI1 and a second CI (“CI2") said that Vittek was present at about

90% of the Anderson cooks.          CI2 provided information regarding

Vittek’s   involvement      in   manufacturing   meth   between      April   and

September 2004.     CI2 stated that he attended at least 100 cooks

at which between 400 and 1,000 pills were used.              CI2 also stated

that Vittek’s three-year-old son was present for several meth

cooks during that time and that “he’d never seen another three-


     3
          The 576 ounce approximation was determined as follows:
CI1 stated that Vittek and Anderson generally cooked meth three
times each week; that each of those cooks yielded about one ounce
of meth; and that this manufacturing rate continued from the
beginning of 2000 to the beginning of 2004. Sergeant Jeff Clark of
the City of Temple Police Department calculated the number of
ounces of meth produced each year based on an assumption of 48
weeks of meth cooking.      That number, multiplied four times,
resulted in the 576-ounce estimate.

                                        4
year-old that had quite the knowledge of methamphetamine cooking

that Dwight had.”      Both CIs were meth users, were involved in its

manufacture, and have been convicted of criminal offenses.

C.   Prior Proceedings

     Vittek    was     charged   in    a   two-count    Fourth     Superseding

Indictment filed on September 13, 2005.           She was first charged,

in   count    SS1,   for   “[b]eginning     in   or    about     July,   2002,”

“unlawfully      and       willfully       combin[ing],        conspir[ing],

confederat[ing], and agree[ing], together and with each others,

to manufacture at least 500 grams of a mixture and substance

containing a detectable amount of methamphetamine,” in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846.                Vittek was

next charged in count SS8, with “[on] or about September 28,

2004,

     unlawfully,   knowingly,  and   intentionally  .   .  .
     possess[ing] with intent to distribute methamphetamine,
     a Schedule II Controlled Substance, the said possession
     having occurred within one thousand (1,000) feet of the
     real property comprising a playground, namely, Jones
     Park, 1102 West Avenue H, Temple, Bell County, Texas,
     in violation of Title 21, United States Code, Section
     841(a)(1) and 841(b)(1)(C) and 860(a).

     On September 29, 2005, Vittek pleaded guilty to count SS8 ——

possession with intent to distribute meth within 1,000 feet of a

playground, in violation of 21 U.S.C. §§ 841(a)(1),4 (b)(1)(C),5


     4
          21 U.S.C. § 841(a)(1) makes it “unlawful for any person
knowingly or intentionally . . . to manufacture, distribute, or

                                       5
and 860(a).6

     The   Presentence   Investigation   Report   (PSR)   set   Vittek’s

total offense level at 42.7      Using U.S.S.G. § 2D1.2(a)(2), the

PSR determined that Vittek’s base offense level —— for a drug




dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.”
     5
          21 U.S.C. § 841(b)(1)(C) states, in pertinent part, that,
“[e]xcept as otherwise provided in section 859, 860, or 861 of this
title, any person who violates subsection (a) of this section shall
be sentenced as follows: . . . (C) In the case of a controlled
substance in schedule I or II, . . . to a term of imprisonment of
not more than 20 years . . . .”
     6
          Section (a) of 21 U.S.C. § 860, “Distribution or
manufacturing in or near schools and colleges,” states in relevant
part:
     “(a) Penalty
          Any person who violates section 841(a)(1) . . . of
     this title by distributing, possessing with intent to
     distribute, or manufacturing a controlled substance in or
     on, or within one thousand feet of, the real property
     comprising a public or private elementary, vocational, or
     secondary school or a public or private college, junior
     college, or university, or a playground . . . is . . .
     subject to (1) twice the maximum punishment authorized by
     section 841(b) of this title; and (2) at least twice any
     term of supervised release authorized by section 841(b)
     of this title for a first offense. . . .”
     7
          Confusingly, the district court’s statement of reasons
indicates that Vittek’s total offense level was 41. We assume this
was a typographical error by the court reporter, as the district
court adopted the PSR without change and the PSR determined that
Vittek’s total offense level was 42. In any event, the sentencing
range for 41 and 42 are identical: 360 months to life.         See
Sentencing Table in U.S. SENTENCING GUIDELINES MANUAL (2004).

                                  6
quantity of 14.68 kilograms of meth —— was 37.8             To this base

offense level of 37, the PSR recommended a two-level increase

pursuant to subsection 2D1.1(b)(1), which states that “[i]f a

dangerous weapon (including a firearm) was possessed, increase by

2   levels.”9   The   PSR   also   recommended   a   six-level   increase,

pursuant to 2D1.1(b)(6)(C), which states that “[i]f the offense

(i) involved the manufacture of amphetamine or methamphetamine;

and (ii) created a substantial risk of harm to the life of a

minor or an incompetent, increase by 6 levels,”10 because the

offense involved the manufacture of methamphetamine and created a

substantial risk of harm to the life of Vittek’s child.              After

being reduced by three levels for acceptance of responsibility,

pursuant to U.S.S.G. § 3E1.1(a) and (b), Vittek’s total offense

level was set at 42.

      The PSR calculated Vittek’s criminal history points as two


      8
          Subsection 2D1.2(a)(2) sets the base offense level at: “1
plus the offense level from § 2D1.1 applicable to the total
quantity of controlled substances involved in the offense.”
Section (c) of Guideline 2D1.1 is a “Drug Quantity Table.”
Subsection (c)(2) of Guideline 2D1.1 indicates that a base offense
level of 36 is appropriate for “At least 5 KG but less than 15 KG
of Methamphetamine, or at least 500 G but less than 1.5 KG of
Methamphetamine (actual), or at least 500 G but less than 1.5 KG of
‘Ice’.” Using the 14.68 kilograms as the applicable drug quantity,
2D1.2(a)(2) indicated to add one level to 2D1.1(c)(2)’s
recommendation of 36; hence, the base offense level was 37.
      9
           U.S.S.G. § 2D1.1(b)(1).
      10
           U.S.S.G. § 2D1.1(b)(6)(C).

                                     7
and her criminal history category as II.                          Based on a total

offense     level      of   42   and    a   criminal    history    category    of   II,

Vittek’s sentencing guidelines range was 360 months to life.

       Vittek objected to the PSR, challenging the calculation of

her base offense level, the firearm enhancement,11 the six-level

enhancement for creating a substantial risk of harm to the life

of a minor, the drug quantity that was attributed to her, the

PSR’s failure to recommend a reduction for a minimal or minor

role, the criminal history calculation, and the PSR’s failure to

recommend a downward departure.

       After hearing testimony from the government and argument

from    counsel     in      November    2005,     the   district    court   sentenced

Vittek      to   168     months’       imprisonment,      five    years’    supervised

release, a $2,000 fine, and a $100 special assessment.                              The

district court’s statement of reasons indicates that it adopted

the PSR      “without       change.”        The   court   nevertheless      imposed   a

sentence below the advisory sentencing guideline system “to avoid

unwarranted sentencing disparities among defendants,” citing 18

U.S.C. § 3553(a)(6).             Vittek timely filed a notice of appeal.




       11
          Vittek does not appeal the district court’s application
of the two-level firearm enhancement.

                                             8
                            II. LAW AND ANALYSIS

A.     Standard of Review

       “Even after Booker, the district court's interpretation of

the    Sentencing   Guidelines      is   reviewed     de    novo    and   its    fact

findings are reviewed for clear error.”12                    After reviewing a

district court’s interpretation of the Guidelines, we “review the

sentence, whether imposed pursuant to the Guidelines or departing

from them, for unreasonableness.”13           When a sentence falls within

a     properly    calculated     guidelines        range,     the    sentence      is

presumptively reasonable.14

       “Booker contemplates that a sentencing judge will determine

facts relevant to sentencing, including relevant conduct.”15                        In

reviewing     sentencing    decisions,       we    “take     into     account      the

district court’s        ‘wide   discretion    in    the     kind    and   source    of

information      [it]   considers   in   imposing     sentence.’”16         We     are



       12
            United States v. Washington, 480 F.3d 309, 312 (5th Cir.
2007).
       13
          United States v. Medina-Argueta, 454 F.3d 479, 481 (5th
Cir. 2006).
       14
            Id.
       15
            United States v. Alonzo, 435 F.3d 551, 553 (5th Cir.
2006).
       16
          United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996)
(quoting United States v. Garcia, 693 F.2d 412, 416 (5th Cir.
1982)) (alteration in original).

                                         9
further mindful that, “[f]or sentencing purposes, the district

court may consider any relevant evidence ‘without regard to its

admissibility under the rules of evidence applicable at trial,

provided     that    the    information      has     sufficient    indicia   of

reliability to support its probable accuracy.’”17

B.   Drug Quantity

     Vittek challenges the drug quantity that was attributed to

her in calculating her base offense level.              “When determining the

base offense level for drug distribution, a court may, of course,

consider relevant conduct of which the defendant has not been

charged,     or   convicted.”18     Vittek    contends    that    the   district

court     nevertheless     erred   in   considering    the   relevant    conduct

here, arguing that (1) the quantity of drugs attributed to her

was not supported by reliable evidence, and (2) because the drug

amount attributed to her —— 14.68 kilograms —— was much greater

than the roughly 6 grams of meth involved in her substantive

offense, and therefore dramatically increased her base offense

level, the district court should have required the government to

prove the additional amount of drugs by a higher burden of proof

than a preponderance of the evidence.              Both arguments fail.



     17
             Id. (citing U.S.S.G. § 6A1.3).
     18
             United States v. Young, 981 F.2d 180, 189 (5th Cir.
1992).

                                        10
       1.        Reliability of the Evidence

       Vittek contends that the PSR relied “almost exclusively on

the testimony of the CIs,” which was “inherently unreliable and

unbelievable.”               Thus,     she    asserts,      the     quantity     of    drugs

attributed to her for the purpose of sentencing should have been

limited to the roughly six grams of meth that was recovered by

police on the date of the car chase, which Vittek argues is “the

only amount credibly tied to her.”

       As        a    sentencing       court’s      determination          regarding       the

applicable quantity of drugs involved in a crime is a factual

finding, we review for clear error.19                       A sentencing court “may

rely        on       the     information      presented        in      the      presentence

investigation report so long as the information has some minimum

indicium of reliability.”20                   The defendant has the burden of

proving          that      the   sentencing         court     relied       on    unreliable

information in determining the relevant conduct.21

       Here,         the    district    court’s      findings       were     based    on   the

testimony            of    Sergeant    Jeff    Clark,       from    the    Temple     Police

Department, who testified at the sentencing hearing about his


       19
                 Id. at 185.
       20
          United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991)
(internal quotation marks omitted).
       21
          Id.; United States v. Betancourt, 422 F.3d 240, 248 (5th
Cir. 2005).

                                               11
debriefings of two CIs involved in the Anderson meth-cooking

operation.       According to Clark’s testimony, the CIs, who were

debriefed separately and approximately six months apart, provided

similar descriptions of the meth-cooking operation and Vittek’s

involvement      in    it.    Moreover,      Clark   testified    that     he   had

independently corroborated a “substantial amount” of the CIs’

information.        Clark explained that, for example, officers found

evidence    of    meth   cooks    at   the   location   where     CI1    informed

officers the cooks had occurred.               In light of the information

provided by the CIs —— uncontradicted by Vittek —— Vittek has not

met   her    burden      of   demonstrating      that   the     district    court

determined       the   quantity   of   drugs    involved   on    the    basis    of

unreliable evidence.

      2.    Standard of Proof

      Vittek concedes that, as a general matter, “[t]he sentencing

judge is entitled to find by a preponderance of the evidence all

the facts relevant to the determination of a Guideline sentencing

range and all facts relevant to the determination of a non-

Guidelines sentence.”22        She nevertheless contends that “a higher

burden      [than      the    customary        preponderance-of-the-evidence

standard] must be met when a sentence is dramatically” increased



      22
          United States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).

                                        12
by     the   quantity   of    drugs   involved   in    relevant      conduct.23

Applying the      preponderance-of-the-evidence        standard     in   such a

case, Vittek contends, would allow the proverbial tail to wag the

dog.

       Although Vittek is correct that we have previously suggested

that there may be circumstances when the relevant conduct has so

greatly increased the sentence that a higher standard of proof

must apply,24 this is not such a case.           Indeed, we have rejected

the “tail wagging the dog” argument when the disparity between

the    relevant   sentences    was    even   greater   than   the    disparity

between the sentences at issue here.25


       23
          If Vittek had been sentenced based only on the
approximately six grams of meth, the advisory sentencing range
would have been 51 to 63 months’ imprisonment.          See Sentencing
Table in U.S. SENTENCING GUIDELINES MANUAL (2004) (based on a criminal
history category II and a total offense level of 23). This range
represents less than half of Vittek’s 168-month sentence, and
slightly more than one-sixth of the minimum 360-month term of
imprisonment recommended by the PSR.
       24
          United States v. Mergerson, 4 F.3d 337, 344 (5th Cir.
1993) (stating that “[w]e believe that . . . there may be certain
cases where a sentencing fact is a ‘tail that wags the dog of the
substantive offense,’ and might arguably require a finding beyond
a reasonable doubt . . . .” but concluding that defendant’s
sentence did not present such a case) (internal citations
omitted)); see also United States v. Harper, 448 F.3d 732, 734 n.1
(5th Cir.) (collecting cases suggesting that higher burden might be
warranted in some circumstances), cert. denied, 127 S. Ct. 285
(2006).
       25
          United States v. Carreon, 11 F.3d 1225, 1240 (5th Cir.
1994) (“The difference here —— between approximately six and almost
twenty years —— . . . does not constitute such a dramatic effect

                                       13
C.   Criminal History

     Vittek contends that the sentencing court erred in adding a

one-level increase to her criminal history calculation because of

a 1993 conviction.      She insists that the offense underlying that

conviction “occurred more than 10 years prior to the commencement

of the instant offense.”        Citing U.S.S.G. § 4A1.2(e)(3)26 for

authority, she states that the offense giving rise to the 1993

conviction occurred in September 1993, and that she received a

six-month term of probation for that offense on February 18,

1994.     The point is that her current offense of conviction, which

took place on September 28, 2004, occurred more than ten years

later.

     In determining the proper criminal history under U.S.S.G. §

4A1.2(e)(2), a prior sentence “that was imposed within ten years

of the defendant’s commencement of the instant offense” may be

considered.      The   commentary   to   the   guideline   indicates   that

“[t]he term ‘commencement of the instant offense’ includes any



that it would justify considering, much less imposing, the higher
burden of proof.”).
     26
          U.S.S.G. § 4A1.2(e)(3) states that “[a]ny prior sentence
not within the time periods specified above is not counted.”
U.S.S.G. § 4A1.2(e)(1), which deals with “[a]ny prior sentence of
imprisonment exceeding one year and one month,” is inapplicable;
U.S.S.G. § 4A1.2(e)(2) states, however, that “[a]ny other prior
sentence that was imposed within ten years of the defendant’s
commencement of the instant offense is counted.”

                                    14
relevant    conduct.”27        Here,    the        evidence   demonstrated     that

Vittek’s relevant conduct began in early 2000.                    As the earlier

sentence was imposed within ten years of Vittek’s involvement in

the   meth-cooking      operation,     her    1993    conviction    was    properly

considered.

D.    Right of Confrontation

      “[I]t is more than well-established that, ‘a defendant’s

confrontation      rights    at   a    sentencing       hearing     are    severely

restricted.’”28          Nevertheless,        Vittek     contends     that     “her

constitutional rights to confrontation were violated based on the

District Court’s use of unchallenged statements of two CIs in

calculating the amount of drugs.”

      Vittek’s argument is precluded by our recent decision in

United States v. Beydoun.             In Beydoun, the defendant–appellant

objected to the district court’s reliance for sentencing purposes

on testimony by a law enforcement officer regarding conversations

he    had   with     the    defendant’s        co-conspirator       and     another

individual.29      As   does   Vittek,       the    defendant–appellant      argued


      27
          Application Note 8 of the Commentary to Guideline 4A1.2
states that “[a]s used in §4A1.2(d)(2) and (e), the term
‘commencement of the instant offense’ includes any relevant
conduct.”
      28
          Young, 981 F.2d at 188 (quoting United                          States   v.
Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990)).
      29
            469 F.3d 102, 108 (5th Cir. 2006).

                                        15
that “because the Guidelines calculation of infringement amount

involves         fact-bound       determinations        capable     of     increasing     his

sentence, the court’s reliance on hearsay testimony violated his

right       of     confrontation          under        Crawford      v.     Washington.”30

Following pre-Crawford Fifth Circuit precedent, as well as our

unpublished opinions and the “majority of our sister circuits,”

we    rejected         the    argument    and    “conclude[d]       that     there   is    no

Crawford violation when hearsay testimony is used at sentencing,

rather than            at    trial.”31    Accordingly,       Vittek’s       Confrontation

Clause rights were not violated.

E.    Minor or Minimal Participant

       Vittek      contends        that   the    sentencing        court    erred    by   not

reducing her offense level “based on her minor or minimal role in

the    offense.”             Specifically,       she    asserts     that     there   is    no

evidence showing that she “was involved in the actual process of

making” meth, and further, that “the statements made by the CIs

indicate that her alleged participation was minimal, or, at most,

minor.”

       U.S.S.G. 3B1.2, “Mitigating Role,” instructs that a decrease

in offense level is appropriate if the defendant was either a

“minimal”         or    “minor”      participant        in   the     illegal    activity.


       30
                 Id.
       31
                 Id.

                                                16
Whether         a    defendant     is     a    minimal   or   minor    participant       is   a

“sophisticated              factual      determination”       made    by   the   sentencing

court; these findings are reviewed under the clearly erroneous

standard.32           The determination turns on the level of culpability,

which         is    itself    “a   determination         requiring     sensitivity       to   a

variety of factors.”33                  The defendant has “the burden of proving,

by   a        preponderance        of    the    evidence,     her    minor   role   in    the

offense.”34               The mere fact that a defendant is “less culpable

than her codefendants” does not necessarily require a minor- or

minimal-participant downward adjustment; the defendant should be

“substantially less culpable.”35

         The evidence at the sentencing hearing indicated that Vittek

participated in Anderson’s meth cooks by contributing supplies,

including pseudoephedrine pills, and that she was present at 90%

of the cooks.              In light of this evidence, the district court did

not clearly err in determining that Vittek was not a minimal or

minor participant.

F.       Enhancement for Substantial Risk of Harm to Minor


         32
                    United States v. Gallegos, 868 F.2d 711, 713 (5th Cir.
1989).
         33
                    Id.
         34
                    United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir.
1994).
         35
                    Id.

                                                  17
      The PSR increased Vittek’s offense level by 6, pursuant to

U.S.S.G. § 2D1.1(b)(6)(C),36 based on a finding that her conduct

posed a substantial risk of harm to a minor.       Vittek challenges

the   six-level   enhancement.    First,    she   contends   that   (1)

Guideline 2D1.2's cross-reference to 2D1.1 is only to the drug

quantity table in 2D1.1(c) and not to the remaining parts of

2D1.1,37 and (2) there was no evidence that the liquid substance

found in the car posed a substantial risk of harm to her son.

      Although we doubt the merits of both prongs of Vittek’s

attack on the six-level enhancement, we need not address either

of her contentions, as her 160-months sentence is well below the

guideline range that would have applied to her offense level

without the six-level enhancement.         If Vittek’s total offense

level were 36 instead of 42, the sentencing range would be 210-

262 months.38     The sentence she actually received, a 168-month


      36
          Section 2D1.1(b)(6)(C) provided that “[i]f the offense
(i) involved the manufacture of amphetamine or methamphetamine; and
(ii) created a substantial risk of harm to the life of a minor or
an incompetent, increase by 6 levels.” In 2006, the U.S.S.G. was
amended to include additional special offense characteristics. As
a result, Section 2D1.1(b)(6)(C) in the 2004 Sentencing Guidelines
is now at Section 2D1.1(b)(8)(C).
      37
          Vittek’s base offense level was calculated at 37, which
the PSR found by adding “1 plus the offense level from § 2D1.1
applicable to the total quantity of controlled substances involved
in the offense.” U.S.S.G. § 2D1.1(a)(2).
      38
           See Sentencing Table in U.S. SENTENCING GUIDELINES MANUAL
(2004).

                                 18
term of imprisonment, was therefore substantially less than the

210 months that would have applied under a total offense level of

36.   Accordingly, even if we assume arguendo that the six-level

enhancement was incorrectly applied, Vittek’s sentence remains

entitled to a presumption of reasonableness.39

                             III. CONCLUSION

      Vittek’s   sentence,     below    the    guidelines   range,   is

presumptively reasonable.     As Vittek has offered no basis for our

finding her sentence to be unreasonable, we AFFIRM.




      39
          United States v. Medina-Argueta, 454 F.3d 479, 483 (5th
Cir. 2006) (“We hold that in situations such as this, in which the
district court miscalculates the guideline range yet imposes a
sentence that falls within a properly calculated guideline range,
the sentence enjoys a presumption of reasonableness.”).

                                   19
