                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4545



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JAIME SALAZAR GALLEGOS, a/k/a Flaco,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:05-cr-00092-H)


Submitted:   January 31, 2007          Decided:     February 21, 2007


Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jaime Salazar Gallegos pled guilty pursuant to a plea

agreement to one count of conspiracy to distribute and possess with

intent to distribute more than 500 grams of cocaine, in violation

of 21 U.S.C. §§ 841(a)(1), 846 (2000).         Because the district court

determined Gallegos was responsible for 2.5 kilograms of cocaine

powder, Gallegos was sentenced to 100 months’ imprisonment.              We

find no error and affirm Gallegos’s conviction and sentence.

           On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967).    He first asserts that there is “a

genuine issue about whether the appeal waiver in the plea agreement

is knowing and intelligent.”     Counsel next questions whether the

magistrate judge fully complied with the requirements of Rule 11.1

Finally, counsel contends the district court violated Blakely v.

Washington, 542 U.S. 296 (2004), because it sentenced Gallegos

based on a drug weight that was not admitted, alleged in the

indictment, nor found by jury beyond a reasonable doubt.            However,

counsel   concluded   this   argument    was    “foreclosed”   by    United

States v. Booker, 543 U.S. 220 (2005).2




     1
      Gallegos consented to enter his plea before a magistrate
judge pursuant to 28 U.S.C. § 636 (2000).
     2
      As Gallegos was sentenced post-Booker, and Gallegos concedes
there was not a Sixth Amendment violation under Booker, we do not
address this issue.

                                 - 2 -
          In his pro se supplemental brief, Gallegos joins his

counsel’s assertion that his appellate waiver was not knowingly and

intelligently made.    Additionally, Gallegos contends the district

court erred by finding the drug weight by a preponderance of the

evidence rather than beyond a reasonable doubt.        Gallegos further

contends his sentence is procedurally unreasonable because the

district court failed to make specific findings on the record. The

Government elected not to file a responsive brief.

          Gallegos    first    challenges   the   voluntariness   of   the

appellate waiver provision in his plea agreement. However, because

the Government has not sought to enforce the waiver, we have not

considered it. Accordingly, we need not address whether Gallegos’s

agreement to the appellate waiver was knowing, intelligent, or

voluntary.

          Next, Gallegos contends the magistrate judge did not

fully comply with the requirements of Rule 11.         Because Gallegos

did not seek to withdraw his guilty plea in the district court, we

review any alleged Rule 11 error for plain error.       United States v.

Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). To establish plain

error, Gallegos must show that an error occurred, that the error

was plain, and that the error affected his substantial rights.

United States v. White, 405 F.3d 208, 215 (4th Cir.), cert. denied,

126 S. Ct. 668 (2005).        We have reviewed the record and find no

error.


                                  - 3 -
            Gallegos    next       contends       the   district   court     erred   by

sentencing him based on facts that were not proven beyond a

reasonable doubt.       However, after Booker, sentencing courts are

still required to calculate and consider the guideline range

prescribed thereby as well as the factors set forth in 18 U.S.C.

§ 3553(a) (2000).      United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005).      This court has previously noted that sentencing

factors should continue to be evaluated based on the preponderance

of the evidence.       United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005).    As Gallegos’s sentence was imposed post-Booker, the

district court’s use of a preponderance of the evidence standard

was proper.

            Further, in imposing Gallegos’s sentence, the district

court stated that it had considered the advisory guideline range,

the relevant § 3553(a) factors, and Booker.                   The court determined

that   a   sentence    at    the    low    end    of    the   guideline     range    was

appropriate as it was “a significant sentence.”                    Though Gallegos

asserts in his pro se supplemental brief that his sentence is

procedurally unreasonable because the district court failed to make

specific findings, and the court concededly failed to explicitly

discuss the various § 3553(a) factors on the record, we conclude it

does not render Gallegos’s sentence unreasonable.                     The district

court satisfied its obligations by explicitly stating at the

sentencing    hearing       that   it     had    considered    both   the    advisory


                                          - 4 -
guidelines as well as the relevant factors set forth in § 3553(a).

See United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006)

(“Requiring district courts to address each factor on the record

would . . . be an exercise in unproductive repetition that would

invite flyspecking on appeal.”).

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   Accordingly we affirm Gallegos’s conviction and sentence.

This court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further review.       If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel     may   move    this    court      for   leave    to     withdraw     from

representation.       Counsel’s motion must state that a copy thereof

was served on the client.         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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