                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-5177



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RASHAWN LAMAR DAWKINS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (3:05-cr-00489-REP)


Submitted:   June 22, 2007                 Decided:   July 13, 2007


Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Grossman, CROWGEY & GROSSMAN, Richmond, Virginia, for
Appellant.    Chuck Rosenberg, United States Attorney, Angela
Mastandrea-Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Rashawn Lamar Dawkins was convicted after a jury trial of

possession with intent to distribute cocaine base.                    The district

court sentenced him to 293 months in prison.                         On appeal, he

challenges     the    denial      of   his    motion    to    suppress      and   the

reasonableness of his sentence.              We affirm.

           Initially,        we   have    reviewed     the   parties’       arguments

concerning the motion to suppress, and we find no reversible error.

Accordingly, we hold that exigent circumstances supported the

protective sweep for the reasons stated by the district court.

(See J.A. at 160-72).

           Dawkins next contends that the district court erred in

failing   to   give    him    a   variance       sentence    below    the   advisory

Guidelines range on the ground that the Guidelines range was

calculated on the basis of acquitted conduct.                 As Dawkins admits,

the district court was free to consider acquitted conduct to

determine the offense level under the Sentencing Guidelines, even

after United States v. Booker, 543 U.S. 220 (2005).                      See United

States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert. denied,

126 S. Ct. 432 (2005); United States v. Williams, 399 F.3d 450, 454

(2d Cir. 2005).      With respect to the court’s decision not to impose

a variance sentence, we review a post-Booker sentence “to determine

whether the sentence is within the statutorily prescribed range and

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


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Cir.), cert. denied, 126 S. Ct. 2054 (2006).            “[A] sentence within

the proper advisory Guidelines range is presumptively reasonable.”

United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).                “[A]

defendant can only rebut the presumption by demonstrating that the

sentence is unreasonable when measured against the § 3553(a)

factors.”     United States v. Montes-Pineda, 445 F.3d 375, 379 (4th

Cir. 2006), petition for cert. filed, ___U.S.L.W.___ (U.S. July 21,

2006) (No. 06-5439).

             Dawkins’ sentence at the top of the Guideline range was

presumptively reasonable.        In addition, the district court stated

that it considered the 18 U.S.C.A. § 3553 (West 2000 & Supp. 2007)

factors.      Moreover,    the   acquitted    conduct    considered    by   the

district court was amply supported by taped phone calls from

Dawkins.      To ignore such incriminating evidence would neither

promote respect for the law nor provide just punishment as required

by § 3553.      Thus, we conclude that Dawkins has failed to rebut the

presumption that his sentence was reasonable.

             Accordingly, we affirm Dawkins’ conviction and 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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