                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4859



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MICHAEL GAYNOR,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-05-29)


Submitted:   January 27, 2006          Decided:     February 14, 2006


Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant.    Thomas E. Johnston, United States
Attorney, Shawn Angus Morgan, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Michael Gaynor pled guilty to conspiracy to manufacture five

grams or more of methamphetamine, in violation of         21 U.S.C. § 846

and § 841(c)(2), and four counts of possession of listed chemicals

with reason to believe the chemicals would be used to manufacture

methamphetamine, in violation of 21 U.S.C. § 841(c)(2).            He was

sentenced to a total of 95 months imprisonment, followed by four

years of supervised release.       On appeal, Gaynor asserts that the

sentence imposed upon him by the district court was unreasonable

and seeks resentencing.     We affirm.

       Under United States v. Booker, 125 S. Ct. 738 (2005), district

courts are directed to calculate the appropriate guideline range,

consider the range in conjunction with other relevant factors under

the guidelines and 18 U.S.C. § 3553(a), and impose a sentence.         If

a district court imposes a sentence outside the guideline range, it

must state its reasons for doing so as required by 18 U.S.C. §

3553(c)(2).     See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir.   2005).     The   sentence   must   be   “within   the   statutorily

prescribed range and . . . reasonable.”        Id. at 547.

       Here, the district court, treating the guidelines as advisory,

established a base offense level of twenty-six and granted a three-

level reduction for acceptance of responsibility, resulting in a

total offense level of twenty-three.           With a criminal history

category of V, Gaynor’s recommended guideline range was 84 to 100


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months.   The court imposed a sentence of 95 months imprisonment.

In doing so, the court found as follows:

     After considering the sentencing range recommended by the
     Advisory Federal Sentencing Guidelines and the factors
     set forth in 18 U.S.C. § 3553(a), this Court finds that
     a sentence within the guideline range of 84 -105 months
     of imprisonment is reasonable.      Moreover, a sentence
     toward the higher end of that range of 95 months is
     appropriate given the nature and circumstances of the
     offense,   the   defendant’s   criminal    history,   the
     defendant’s medical condition, the amount of meth
     involved and the danger that the defendant’s behavior
     posed to the neighboring community. To find otherwise
     would ignore the statutory objective of avoiding
     disparity between sentences and the need for the sentence
     imposed to reflect the seriousness of the offense, to
     promote respect for the law, and to provide just
     punishment for the offense. Further, a sentence toward
     the higher end is reasonable given the defendant’s
     uncooperative posture with the Government during the
     investigation of this matter.     Although this behavior
     does not rise to the level to preclude acceptance [of
     responsibility], the sentence ought to recognize that he
     could have done more and did not do so.

J.A. 160 (internal quotation marks omitted).

     On   appeal,   Gaynor   claims   that   the   95-month   sentence   is

unreasonable because the district court based it, at least in part,

upon Gaynor’s exercise of his Fifth Amendment privilege against

self-incrimination and his refusal to fully cooperate with the

authorities in their methamphetamine investigation. Gaynor did not

assert this Fifth Amendment right at sentencing, nor otherwise

object to the sentence on these grounds before the district court.

Accordingly, we review his claim under the plain error standard.

See United States v. Olano, 507 U.S. 725, 731-32 (1993) (appeals

court will not notice unpreserved error unless error occurred, that

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was plain, affected substantial rights, and seriously affects the

fairness, integrity, or public reputation of judicial proceedings).

       In United States v. Rivera, 201 F.3d 99, 101-02 (2d Cir.

1999), relied upon by Gaynor, the defendant appealed the district

court’s imposition of a sentence which was within the guideline

range because the court specifically attributed sixty months of the

sentence to the defendant’s failure to cooperate.              The Second

Circuit held that the increase was an unconstitutional penalty.

This decision, however, placed the Second Circuit in disagreement

with the Seventh Circuit, which has held that a district court is

free   to   consider   the   defendant’s   failure   to    cooperate   when

assigning a sentence within the guideline range. See United States

v. Price, 988 F.2d 712, 722 (7th Cir. 1993); United States v.

Klotz, 943 F.2d 707, 710-11 (7th Cir. 1991).              We have not yet

addressed the issue of whether a defendant’s rights under the Fifth

Amendment limit the district court’s discretion in selecting a

sentence, either within or outside the guideline range.          However,

we are satisfied that Gaynor is not entitled to relief because he

has not shown that plain error occurred in his case.

       Accordingly, we affirm Gaynor’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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