                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4681


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

RUSSELL FLOYD FRESHOUR,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:05-cr-00235-LHT-DLH-1)


Submitted:    September 29, 2009            Decided:   October 15, 2009


Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant.   Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Russell     Floyd       Freshour            was        found     guilty       of

manufacturing      and    possessing       with       intent      to    distribute       fifty

grams or more of methamphetamine and was sentenced to 210 months

of     imprisonment      in   2006.            This    court      affirmed       Freshour’s

conviction on appeal but remanded for resentencing.                              See United

States    v.    Freshour,     235    F.    App’x       193    (4th      Cir.    2007).       On

remand, the court found Freshour responsible for forty grams of

actual methamphetamine, recalculated his Sentencing Guidelines

range as 168-210 months of imprisonment, and imposed a within-

Guidelines range sentence of 180 months.

               Freshour again appeals, raising the following issues:

(1)     whether     evidence        was    sufficient            to     establish      by    a

preponderance of the evidence that he manufactured or possessed

with    intent     to    distribute       at       least     forty      grams    of   actual

methamphetamine for purposes of sentencing, and (2) whether the

district court violated his Sixth Amendment rights by increasing

his    sentence    by    facts   and      an       enhancement        found    only   by    the

judge, which were not pled in the indictment or found by the

jury beyond a reasonable doubt.                    For the reasons that follow, we

affirm.

               First, we find no clear error in the district court’s

conclusion      that     Freshour    was       responsible        for    forty    grams      of

actual methamphetamine.             See United States v. McDonald, 61 F.3d

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248, 255 (4th Cir. 1995) (providing review standard for quantity

of   drugs    attributable      to   a    defendant    for    sentencing).       The

record       reveals     Freshour’s            extensive     manufacturing       and

distributing of the drug over an extended period of time, which

supports the court’s factual findings on the matter.

             Second, the district court’s calculation of Freshour’s

advisory sentencing range and imposition of a sentence within

the statutory maximum does not offend the Sixth Amendment, as he

was sentenced below the statutory maximum for the offense with

no drug weight.          See 21 U.S.C.A. § 841(b)(1)(C) (West Supp.

2009) (twenty-year maximum punishment for an unspecified amount

of methamphetamine); Rita v. United States, 551 U.S. 338, 347

(2007) (holding that “a court of appeals may apply a presumption

of reasonableness to a district court sentence that reflects a

proper application of the Sentencing Guidelines”); United States

v.   Booker,    543    U.S.   220,       244-45    (2005)    (noting   that   Sixth

Amendment      error   occurs    where      the    district    court   imposes    a

sentence greater than the maximum permitted based on facts found

by a jury or admitted by the defendant).

             Accordingly, both of Freshour’s claims fail on appeal

and we affirm his sentence.               We dispense with oral argument as

the facts and legal contentions are adequately presented in the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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