                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4975



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DENNIS DWAYNE BARRETT,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-05-41)


Submitted:   April 26, 2006                   Decided:   June 7, 2006


Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant.     Charles T.
Miller, Acting United States Attorney, Joshua C. Hanks, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A jury convicted Dennis Dwayne Barrett of being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2)      (2000).     He   was    sentenced     to    forty-one       months    of

imprisonment.      On appeal, he argues that the district court erred

in instructing the jury regarding the “in or affecting commerce”

element and that his sentence is unreasonable.                   We affirm.

            This court reviews a district court’s decision to give a

jury instruction and the content of an instruction for abuse of

discretion.     See United States v. Abbas, 74 F.3d 506, 513 (4th Cir.

1996).    A district court abuses its discretion when it fails or

refuses   to    exercise    its     discretion      or    when    its    exercise    of

discretion is flawed by an erroneous legal or factual premise.

James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).                        When jury

instructions are challenged on appeal, the issue is whether, taken

as a whole, the instructions fairly stated the controlling law.

United States v. Cobb, 905 F.2d 784, 788-89 (4th Cir. 1990).

            Barrett      concedes     that   this    court       has    rejected    his

argument that the Government must prove his possession of a firearm

explicitly affected or was connected with interstate commerce.                       He

argues,   however,       that   the   district      court’s      jury    instruction

obviated the Government’s burden of proof on an essential element

of the offense and thereby violated due process by creating an

unconstitutional presumption.           The court specifically instructed


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the jury that the Government was obligated to prove beyond a

reasonable doubt that the firearm traveled in interstate commerce.

Because the district court’s instruction that the “in or affecting

commerce” element could be proven by evidence that the firearm was

manufactured in another state is consistent with the controlling

law and the jury instruction did not obviate the Government’s

burden of proving the element, we find Barrett’s challenge to the

jury instruction without merit.

            Barrett also argues that his forty-one-month sentence was

unreasonable because it is greater than necessary to reflect the

seriousness of the offense, to promote respect for the law, and to

provide just punishment.    He specifically points to the fact that,

while his possession of the firearm was illegal, he did not

physically harm or threaten the public.

            After United States v. Booker, 543 U.S. 220 (2005), a

sentencing court is no longer bound by the range prescribed by the

sentencing guidelines.    See United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005).   In a post-Booker sentencing, district courts

must calculate the appropriate guideline range, consider the range

in conjunction with other relevant factors under the guidelines and

18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a

sentence.    United States v. Green, 436 F.3d 449, 455-56 (4th Cir.

2006) (citing Hughes, 401 F.3d at 546), cert. denied, __ U.S. __,

2006 WL 1057741 (U.S. May 22, 2006) (No. 05-10474).       However, a


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“district court need not explicitly discuss every § 3553(a) factor

on the record.”     United States v. Eura, 440 F.3d 625, 632 (4th Cir.

2006)   (citation     omitted).     “[A]     sentence    imposed    within   the

properly    calculated      Guidelines   range   .   .   .   is   presumptively

reasonable.”    Green, 436 F.3d at 457 (internal quotation marks and

citation omitted); see United States v. Johnson, 445 F.3d 339, 341-

44 (4th Cir. 2006)(discussing justifications for finding sentence

within properly calculated advisory guidelines range presumptively

reasonable).

            Based on an offense level of twenty and a criminal

history category of III, Barrett’s guideline range was forty-one to

fifty-one    months    of    imprisonment.       Barrett’s    forty-one-month

sentence was at the bottom of the guideline range and below the

statutory maximum of ten years of imprisonment for a § 922(g)(1)

violation.     The district court clearly appreciated the guidelines

as advisory and stated that it had taken into consideration the

factors under 18 U.S.C.A. § 3553(a).          The court noted that Barrett

had “compiled a significant criminal record,” but took into account

that he had adjusted well in North Carolina for the past two years.

The court concluded that, because of Barrett’s record, it was

appropriate to sentence him within the suggested guideline range.

Because the district court appropriately treated the guidelines as

advisory, properly calculated and considered the guideline range,




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and weighed the relevant § 3553(a) factors, we find that Barrett’s

sentence is reasonable.

           Accordingly, we affirm Barrett’s conviction and sentence.

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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