                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4588



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LARRY EDWARD PATTON, JR.,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-03-93)


Submitted:   February 28, 2006             Decided:   April 4, 2006


Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael A. Bragg, BRAGG LAW, PLC, Abingdon, Virginia, for
Appellant.   John L. Brownlee, United States Attorney, Rick A.
Mountcastle, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Larry Edward Patton, Jr. appeals his sentence to thirty-

seven months in prison, three years of supervised release, and

restitution following his guilty plea to one count of conspiracy to

transport stolen property and one count of transporting stolen

property in violation of 18 U.S.C. §§ 2, 371, 2314 (2000).1              Patton

contends the district court erred by treating the sentencing

guidelines as advisory and by enhancing his sentence based on

judicial fact-finding.        We affirm.

          Patton’s sentence was imposed after the issuance of

Blakely v. Washington, 542 U.S. 296 (2004), but before United

States v. Booker, 543 U.S. 220 (2005), issued.                 The probation

officer   determined    Patton’s     base     offense   level    under    U.S.

Sentencing Guidelines Manual (“USSG”) § 2B1.1(a)(2) (2003) was six.

He applied a ten-level enhancement under USSG § 2B1.1(b)(1)(F),

based on a loss amount between $120,000 and $200,000; a two-level

enhancement   under    USSG    §   3B1.1(c)   for   Patton’s    role     as   an

organizer; and a three-level decrease under USSG § 3E1.1 for

acceptance of responsibility.        He found Patton’s criminal history

category was IV, in part based on a determination that the instant

offenses began within two years after Patton’s release from custody


     1
      This appeal was previously in abeyance for United States v.
Blick, 408 F.3d 162 (4th Cir. 2005). However, as the Government
has not sought enforcement of Patton’s waiver of appellate rights
contained in his plea agreement, we decline to consider whether the
waiver is dispositive of this appeal.

                                    - 2 -
on a prior charge pursuant to USSG § 4A1.1(e).               Accordingly,

Patton’s total offense level was fifteen and his guideline range

was thirty to thirty-seven months in prison. Patton did not object

to the original presentence report or otherwise challenge the

guideline calculations or findings of fact therein.2

            After Blakely, Patton argued the district court was still

required to apply the sentencing guidelines but was prohibited from

making judicial findings of fact and enhancing his sentence above

his base offense level of six.          The Government contended that

Blakely either did not apply to the federal sentencing guidelines

or that the guidelines should be applied as advisory. The district

court    ruled   that   Blakely   applied   to   the   federal   sentencing

guidelines and that it would not apply the guidelines as mandatory

but would consider them as advisory when sentencing Patton.          After

hearing unrebutted evidence from the Government in support of the

presentence report, the court adopted its findings of fact and

guideline applications without change. Based on Patton’s extensive

criminal history and the seriousness of the offenses, the court

sentenced him to thirty-seven months in prison.           Pursuant to the



     2
      The probation officer filed an addendum to the presentence
report showing greater losses than stated in the original report,
and Patton objected to the new restitution amounts. However, the
probation officer did not increase the loss amount for purposes of
determining Patton’s guideline range. He further did not apply a
two-level increase under USSG § 2B1.1(b)(2)(A) for an offense
involving more than ten victims based on stipulations in the
parties’ plea agreement.

                                   - 3 -
parties’ plea agreement, the court dismissed three additional

counts.

          “Concluding    that    the    mandatory       application   of    the

Sentencing Guidelines is what offended the Sixth Amendment jury

right,” the Supreme Court in Booker observed that if they were

“‘read as merely advisory provisions that recommended, rather than

required, the selection of particular sentences in response to

differing sets of facts, their use would not implicate the Sixth

Amendment.’”   United States v. Green, 436 F.3d 449, 454-55 (4th

Cir. 2006) (quoting Booker, 125 S. Ct. at 750).                  Because the

guidelines   were   binding,    the    Court   “found    no   distinction    of

constitutional significance between the guidelines and the state

sentencing scheme it evaluated and found wanting in Blakely.”

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).

          To effectuate congressional intent, the Supreme Court

“excised the provisions of the Sentencing Reform Act that mandated

sentencing and appellate review in conformance with the guidelines,

thereby rendering the guidelines ‘effectively advisory.’”                   Id.

(citations omitted).     Although they are no longer mandatory, a

sentencing court must still “consult [the] Guidelines and take them

into account when sentencing.”        Booker, 125 S. Ct. at 767.       “[T]he

court must make factual findings, as appropriate or necessary to

carry out its sentencing function, and in every case give the

reasons for the sentence imposed.”         Green, 436 F.3d at 455.          “We


                                  - 4 -
will affirm the sentence imposed as long as it is within the

statutorily prescribed range, and is reasonable.” Hughes, 401 F.3d

at 546-47 (citations omitted).       A sentence imposed within the

properly calculated guidelines range is presumptively reasonable.

Green, 436 F.3d at 457.

          On appeal, Patton does not contend that the district

court erred in its guideline calculations, only that the court’s

factual findings violated his Sixth Amendment rights. We disagree.

Because the district court properly treated the guidelines as

advisory only, there was no Sixth Amendment error. Moreover, it is

undisputed   that   the   sentence   imposed   was   within   both   the

statutorily prescribed and properly calculated guidelines ranges.

We conclude the sentence was reasonable.

          Accordingly, we affirm.     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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