                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4285


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENDALL SCHUYLER, a/k/a Sleepy,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, District Judge.
(1:98-cr-00259-BEL-13)


Submitted:   December 2, 2010             Decided:   January 7, 2011


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Robert R. Harding, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kendall Schuyler appeals the third amended judgment of

conviction, claiming that the district court erred by applying

the presumption of reasonableness to the Guidelines sentence.

He also claims his Sixth Amendment right to a jury trial was

violated     when    the        court    considered          uncharged      conduct    in

determining the Guidelines sentence and that the drug quantity

was not proven beyond a reasonable doubt.                    We affirm.

            This court reviews the district court’s sentence under

a “deferential abuse-of-discretion standard.”                          Gall v. United

States, 552 U.S. 38, 41 (2007).                   This review entails appellate

consideration        of        both     the       procedural        and      substantive

reasonableness      of    a     sentence.         Id.   at    51.      In    determining

procedural reasonableness, this court first assesses whether the

district    court    properly         calculated    the      defendant’s      Guidelines

range.     Id. at 49, 51.         The court must then consider whether the

district court treated the Guidelines as mandatory, failed to

consider     the    18    U.S.C.        § 3553(a)       (2006)      factors    and    any

arguments presented by the parties, selected a sentence based on

“clearly erroneous facts,” or failed to explain sufficiently the

selected sentence.             Gall, 552 U.S. at 50-51; United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                           This court also

reviews    whether       the    district      court     made     “an      individualized

assessment based on the facts presented.”                     Gall, 552 U.S. at 50;

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see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)

(holding that, while the “individualized assessment need not be

elaborate or lengthy, . . . it must provide a rationale tailored

to    the   particular     case . . . and          [be]     adequate       to   permit

meaningful      appellate       review”       (internal          quotation         marks

omitted)).

            When   reviewing     for   substantive          reasonableness,        this

court takes into account the “totality of the circumstances.”

Gall, 552 U.S. at 51.          This court accords a sentence within a

properly-calculated Guidelines range an appellate presumption of

reasonableness.       See United States v. Abu Ali, 528 F.3d 210, 261

(4th Cir. 2008).       At the same time, the district court “may not

presume that the Guidelines range is reasonable” but “must make

an    individualized     assessment    based       on     the   facts      presented.”

Gall, 552 U.S. at 50.          The presumption of reasonableness “is an

appellate court presumption . . . . [T]he sentencing court does

not enjoy the benefit of a legal presumption that the Guidelines

sentence should apply.”          Rita v. United States, 551 U.S. 338,

351   (2007).      “Rita   presumptions       are       forbidden    in     sentencing

courts”     because    “they    confer       the    force       of   law    upon    the

Guidelines.”       United States v. Mendoza-Mendoza, 597 F.3d 212,

217 (4th Cir. 2010).            If a sentencing court applies a Rita

presumption, the sentence is procedurally unreasonable.                         Id. at

216-17.

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              Procedural errors raised for the first time on appeal

are reviewed for plain error.               United States v. Lynn, 592 F.3d

572, 577 (4th Cir. 2010).           In order to show that there was plain

error, Schuyler must show “(1) an error was made; (2) the error

is plain; and (3) the error affects substantial rights.”                     United

States   v.    Massenburg,    564    F.3d    337,   342-43   (4th    Cir.    2009).

This court retains discretion to correct the error and will do

so only if the error “‘seriously affects the fairness, integrity

or   public    reputation    of   judicial     proceedings.’”        Id.     at   343

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

              In   this   instance,    we    conclude   there   was     no    plain

error.    Assuming without deciding that the district court did

apply a presumption of reasonableness, we note that Schuyler

received the agreed-upon sentence.             Thus, his substantial rights

were not affected.

              We also conclude Schuyler’s right to a jury trial was

not violated when the district court applied the cross-reference

for murder when it determined Schuyler’s Guidelines sentence.                       A

sentencing court may rely on uncharged facts in determining an

appropriate sentence within the statutory range.                    United States

v. Booker, 543 U.S. 220, 233 (2005).                Also, after Booker, this

court has already stated that a sentencing court continues to

make those factual findings concerning sentencing factors by a



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preponderance of the evidence               United States v. Jeffers, 570

F.3d 557, 570 (4th Cir.); cert. denied, 130 S. Ct. 645 (2009).

             In addition, we conclude that Schuyler’s claim that

the drug quantity was not supported by a preponderance of the

evidence is moot because, given the cross-reference for murder,

the   drug    quantity   has    no    bearing   on    Schuyler’s   Guidelines

sentence.

             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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