                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-4077



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES PHILLIP BOOHER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:03-cr-00042-jpj)


Submitted:   August 29, 2007            Decided:   September 25, 2007


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jay H. Steele, Lebanon, Virginia, for Appellant. John L. Brownlee,
United States Attorney, Jean B. Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               James   Phillip    Booher      appeals   the     eighty-eight-month

sentence       he   received    after    he     was   resentenced      under   United

States v. Booker, 543 U.S. 220 (2005).                Booher was first sentenced

in 2003 to a term of 100 months imprisonment after he pled guilty

to possession of a firearm by a convicted felon, a violation of 18

U.S.C.     §    922(g)(1)      (2000),    and    unsuccessfully        contested    an

adjustment      for    obstruction       of   justice    under    U.S.    Sentencing

Guidelines Manual § 3C1.1 (2006).                     He did not object to an

enhancement for a stolen firearm, USSG § 2K2.1(b)(4).                     On appeal,

Booher challenged the obstruction of justice adjustment and the

district court’s refusal to award him an adjustment for acceptance

of responsibility.          We affirmed the sentence, United States v.

Booher, 94 F. App’x 160 (2004) (No. 03-4788), but the Supreme Court

granted certiorari and remanded the case for further proceedings

under Booker. We subsequently held that the obstruction of justice

adjustment and the stolen gun enhancement each constituted Sixth

Amendment error under Booker because they were based on judicial

fact findings made under a mandatory guideline scheme, and remanded

his case for resentencing.           United States v. Booher, 201 F. App’x

139 (4th Cir. 2006) (No. 03-4788).

               On   remand,     Booher    contested      only    the     stolen    gun

enhancement.        An agent of the Bureau of Alcohol, Tobacco, Firearms

and Explosives testified about two reports prepared by the Bristol,


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Virginia, police department after Booher’s arrest.                    The first

report stated that the firearm was checked through the Federal

Bureau of Investigation’s National Crime Information Center, which

indicated that it had been stolen in Newport, Tennessee.                       The

second report described the details of the theft received from the

police in Newport.

            The district court held that the police reports were

reliable    evidence    and   that   the     government    had    proved   by   a

preponderance of the evidence that the gun was stolen.                The court

decided that it was bound by its prior determinations concerning

the guideline range which had been affirmed on appeal because its

only error, under Booker, was the application of the guidelines as

mandatory.       The district court also stated that it would make the

same factual findings if it were to revisit those issues.                      The

court departed below the advisory guideline range of 100-125 months

and imposed a sentence of eighty-eight months imprisonment based on

Booher’s good record in prison and his participation in educational

and vocational programs

            In this appeal, Booher contends that the district court

erred by not making a new factual finding concerning obstruction of

justice, and that it relied on unreliable hearsay to find that the

firearm    was    stolen.     Because   Booher    did     not    object   to   the

obstruction of justice adjustment when he was resentenced, the

district court’s readoption of its prior ruling is subject to plain


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error review.         Under United States v. Olano, 507 U.S. 725, 732-37

(1993), to establish plain error, a defendant must show that

(1) error occurred; (2) the error was plain; and (3) the error

affected his substantial rights.                  Even when these conditions are

satisfied, this court may exercise its discretion to notice the

error   only     if    the       error    “seriously         affect[s]    the    fairness,

integrity or public reputation of judicial proceedings.”                              Id. at

732 (internal quotation and citation omitted).                           As the district

court   noted,       this       court    affirmed      the    obstruction       of    justice

adjustment in Booher’s first appeal.                          Booher argues that the

district court was obligated to reexamine the issue on remand after

Booker.     However, no new evidence was presented and no argument

made to the court on the issue at resentencing.                            Therefore, we

conclude that the court did not plainly err in adopting its prior

ruling on this issue.

            Next,          we    find    no    error    in     the   district         court’s

consideration         of    the    police      reports.         In   resolving        factual

disputes,      the     sentencing         court       may     consider     any       relevant

information that “has sufficient indicia of reliability to support

its probable accuracy,” regardless of its admissibility under the

rules of evidence that would apply at trial.                     USSG § 6A1.3(a).         The

test is whether “the factual evidence relied upon . . . [has] some

minimal indicium of reliability beyond mere allegation.”                               United




                                              - 4 -
States v. Hicks, 948 F.2d 877, 883 (4th Cir. 1991) (internal

quotation and citation omitted). The police reports met this test.

           We therefore affirm the sentence imposed by the district

court.   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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