                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-5110



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SAILE JEAN, a/k/a Shorty Black, a/k/a Desire
Jean Sallier, a/k/a Blackie, a/k/a Jean Saile,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (9:01-cr-01117-SB-1)


Submitted:   July 13, 2007                 Decided:    July 26, 2007


Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Peter D. DeLuca, Jr., DELUCA AND MAUCHER, L.L.P., Goose Creek,
South Carolina, for Appellant. Robert Hayden Bickerton, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Saile Jean appeals his sentence following remand of 360

months of imprisonment and five years of supervised release for

conspiracy to possess with intent to distribute in excess of five

kilograms of cocaine and fifty grams or more of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (2000) and 21 U.S.C.

§ 846 (2000); possession with intent to distribute 500 grams or

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

and 18 U.S.C. § 2 (2000); and making false statements to a federal

agent, in violation of 18 U.S.C. § 1001(a)(2) (2000).1   Counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting that there are no meritorious issues for appeal,

but questioning whether the district court erred in adopting the

facts set forth in the presentence investigation report (“PSR”) and

in sentencing Jean based on facts not found by the jury beyond a

reasonable doubt.2   Jean has filed a supplemental pro se brief

essentially raising the same claim and specifically challenging the

district court’s determination of the amount of drugs attributable

to him and the three-level enhancement of his sentence under U.S.

Sentencing Guidelines Manual (“USSG”) § 3B1.1(b) (2002), for his


     1
      We previously affirmed Jean’s conviction, but vacated his
sentence and remanded for resentencing in accordance with United
States v. Booker, 543 U.S. 220 (2005).
     2
      The district court originally sentenced Jean under the
then-mandatory federal sentencing guidelines to the same sentence
later imposed on remand.

                              - 2 -
role in the offense as a supervisor or manager based on judicially

determined facts found by a preponderance of the evidence and not

found    by   the   jury,      claiming         that   these     findings       violate   his

constitutional rights.3             We affirm.

              Contrary    to    Jean’s         assertion       regarding    the    district

court’s determination of the amount of drugs attributable to him

and its enhancement of his sentence, Booker did “not in the end

move any decision from judge to jury, or change the burden of

persuasion.”        United States v. Morris, 429 F.3d 65, 72 (4th Cir.

2005),    cert.     denied,     127       S.    Ct.    121    (2006).      In    sentencing

defendants after Booker, district courts continue to make findings

necessary for enhancement, applying a preponderance of the evidence

standard, while taking into account that the resulting Guidelines

range is advisory only.             Id.    The sentencing court is authorized to

make factual findings in order to determine appropriately the

defendant’s advisory range under the guidelines.                                 See United

States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).

              The   issue      of    whether       the       district   court     correctly

calculated      the     quantity      of       drugs     attributable       to    Jean    for

sentencing purposes is easily disposed of pursuant to the standard

principles of derivative liability.                      A conspirator may be held

accountable       for   all    quantities         of     drugs    attributable      to    the


     3
      Jean failed to object below to the facts contained in the
PSR, thus rendering this court’s review of his sentence for plain
error. United States v. Olano, 507 U.S. 725 (1993).

                                               - 3 -
conspiracy so long as it was reasonably foreseeable that the drugs

were possessed within the scope of the conspiratorial agreement.

See United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993).

The PSR recommended a drug quantity of 3.746 kilograms of cocaine

base (“crack”) and 53.493 kilograms of cocaine attributable to

Jean, far in excess of the 1.5 kilograms of cocaine base required

for a base offense level of thirty-eight under USSG § 2D1.1(c)(1).

The PSR specified a quantity of 1984.5 grams of crack based on

evidence   from   Jaimie   Green,   one     of   the   members   of   the    drug

conspiracy that included Jean, and this amount alone is sufficient

to support a base offense level of thirty-eight. Specifically, the

PSR reflects that Green reported to Task Force Agents that he

witnessed Lewis Chisolm obtain five or six ounces of crack from

Jean on six or seven occasions (at least 850.5 grams), that he

personally obtained ten ounces of crack from Jean directly (283.5

grams), and that he had observed Jean in possession of thirty or

more ounces of crack at one time (850.5 grams).4                      The trial

evidence of the necessary drug quantity sufficient to support a

base offense level of thirty-eight came from a myriad of witnesses,

was overwhelming, essentially uncontroverted, exceeded even the

estimates used in the PSR to determine Jean’s base level, and put

Jean far in excess of the 1.5 kilograms of cocaine base necessary



     4
      At trial, Green actually testified to amounts                   of    crack
attributable to Jean that exceeded even these amounts.

                                    - 4 -
to trigger the application of a base offense level of thirty-eight.

Thus, we find no basis to conclude that the district court plainly

erred in sentencing Jean on a base offense level of thirty-eight,

as reflected in the PSR.

            With    regard   to   Jean’s   challenge   to   the   three-level

enhancement recommended by the PSR and adopted by the district

court for a leadership role in a conspiracy pursuant to USSG

§ 3B1.1(b), Jean has not offered any evidence to the contrary or

specifically explained why the PSR was inaccurate or unreliable.

His mere challenge, particularly on appeal for the first time, is,

without more, insufficient to put the PSR’s findings into dispute.

United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990); cf.

Gilliam, 987 F.2d at 1013 (“[T]he Government carries its burden if

a defendant fails to properly object to a recommended finding in a

presentence report that the court determines to be reliable.”).

Because Jean failed to make the required affirmative showing that

the PSR was inaccurate or unreliable, the district court was “free

to adopt the findings of the [PSR] without more specific inquiry or

explanation.” Terry, 916 F.2d at 162 (internal quotation marks

omitted).    We affirm the imposition of a three-level leadership

role enhancement to Jean’s offense level.

            After   Booker,   courts   must   calculate     the   appropriate

guideline range, making any appropriate factual findings.              United

States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).             The court


                                    - 5 -
then should consider the resulting advisory guideline range in

conjunction with the factors under 18 U.S.C.A. § 3553(a) (West 2000

& Supp. 2006), and determine an appropriate sentence that is

“sufficient but not greater than necessary,” to achieve the goals

of § 3553(a).    Davenport, 445 F.3d at 370.         We will affirm a

post-Booker sentence if it “is within the statutorily prescribed

range and reasonable.”     United States v. Moreland, 437 F.3d 424,

433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).           We have

repeatedly held that “[A] sentence within the proper advisory

Guidelines range is presumptively reasonable.”        United States v.

Johnson, 445 F.3d 339,       341 (4th Cir. 2006); see also United

States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006), cert.

denied, ---- S. Ct. ----, 75 U.S.L.W. 3707 (U.S. June 29, 2007)

(No. 06-5439); United States v. Green, 436 F.3d 449, 457 (4th

Cir.), cert. denied, 126 S. Ct. 2309 (2006).       Neither Jean nor the

record suggest any information so compelling as to rebut the

presumption   that   his   sentence   within   a   properly   calculated

guideline is reasonable.     We find no error in the calculation of

the advisory guideline range,5 and Jean failed to provide evidence


     5
      At resentencing, the district court specifically referred to
Booker, to the advisory nature of the guidelines, and to the
§ 3553(a) factors, stating that it specifically considered those
factors. It adopted the findings in the presentence report, and in
addition to the § 3553(a) factors, the court considered the
guidelines range and other relevant guideline factors. The court
was familiar with Jean’s history and background, having presided
over his trial. Also, the court had sentenced Jean originally and
was familiar with the details of his case from the initial

                                 - 6 -
to overcome the presumption of reasonableness we accord such a

sentence.   The district court appropriately treated the guidelines

as advisory, and properly sentenced Jean within that range.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   We therefore affirm Jean’s 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 in 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




sentencing hearing. Jean’s presentence report outlined his offense
conduct and his criminal history.     Finally, both Jean and his
attorney took the opportunity to argue about the length of his
sentence and application of the § 3553(a) factors during
resentencing prior to the district court’s imposition of sentence.

                               - 7 -
