                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-4121



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DARRYL PATTERSON,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-99-165-10-V)


Submitted:   August 23, 2006             Decided:   September 13, 2006


Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               This appeal is before the court after our limited remand

for resentencing under United States v. Booker, 543 U.S. 220

(2005).     Darryl Patterson appeals the 262-month sentence imposed

after remand, on his conviction for conspiracy to possess with

intent to distribute cocaine base (crack), in violation of 21

U.S.C.    §§    841(a)(1),   846   (2000).     Patterson   argues   that   the

sentencing court erred in sentencing him under the Sentencing

Guidelines provision for murder, and also that the court erred by

not departing further from the guideline range so calculated.              We

find that the district court properly applied the guidelines and

that the sentence imposed is reasonable.           We therefore affirm the

sentence.

               This court reviews the imposition of a sentence for

reasonableness.        Booker, 543 U.S. at 260-61; United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). 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 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.           Davenport, 445 F.3d at 370.        If the

sentence imposed is within the advisory guideline range, it will be




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presumed to be a reasonable sentence.             United States v. Green,      436

F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).

               Patterson contends that his sentence is unlawful because

the district court made findings that increased his sentence beyond

what it would be based only on facts found by the jury.                 While it

is true that the district court made such factual findings, this

does not result in an unlawful sentence, as long as the sentence

does not exceed the limits of the statute of conviction.                 Indeed,

after Booker, the sentencing court is authorized to make factual

findings      in     order   to   appropriately   determine    the   defendant’s

advisory range under the guidelines.               See Davenport, 445 F.3d at

370.       These authorized factual findings would include a finding as

to whether “a victim was killed under circumstances that would

constitute murder under 18 U.S.C.A. § 1111 [West Supp. 2005],”

which would require application of the murder guideline provision,

USSG § 2A1.1 (First Degree Murder).1              See USSG § 2D1.1(d)(1).2

               Patterson also asserts that the court erred in finding

that the murder cross-reference applies.                He contends that the

jury’s verdict acquitting him of the firearm conspiracy charge

equates       with    the    jury’s   rejection   of   the   evidence   that   he

participated in the home invasion that resulted in the victim’s


       1
      Section 1111 provides that “[e]very murder . . . perpetrated
. . . by robbery . . . is murder in the first degree.” 18 U.S.C.
§ 1111(a).
       2
        U.S. Sentencing Guidelines Manual § 2D1.1(d)(1) (2000).

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death.    This is not necessarily the case.    Moreover, even if the

jury did reject the evidence concerning Patterson’s participation

in the home invasion, we have previously held that a sentencing

court may enhance a defendant’s sentence based on its findings of

conduct by a preponderance of the evidence, even if the jury

acquitted the defendant of that conduct.       See United States v.

Martinez, 136 F.3d 972, 979 (4th Cir. 1998).    We conclude that the

district court did not clearly err in determining that “a victim

was killed under circumstances that would constitute murder under

18 U.S.C.A. § 1111,” and therefore properly applied the murder

guideline.    See USSG § 2D1.1(d)(1).

           Patterson next contends that the seven-level downward

departure that the district court applied is unreasonable under the

circumstances of the case where he was convicted of a drug-related

offense, but sentenced for murder, and he did not intend to kill,

nor did he pull the trigger.    He argues that he should have been

granted a ten-level departure to level 33, because the offense

conduct was more like second degree murder than first degree

murder.      However, the sentencing court limited its departure,

noting the “recklessness of the conduct” and the context in which

the offense occurred.     The court also emphasized “the need to

afford adequate deterrence and to protect the public.” In light of

the advisory nature of the guidelines and its consideration of the




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factors in § 3553(a), the sentencing court found that a departure

to level 36 was appropriate.

             Because the district court adequately explained the basis

for    its   sentencing   decision    and    considered      both    Patterson’s

arguments and the § 3553(a) factors with respect to Patterson and

his conduct, we find that the resulting 262-month sentence is

reasonable.      See United States v. Montes-Pineda, 445 F.3d 375, 380

(4th Cir.), petition for cert. filed,                 U.S.L.W.        (U.S. July

21, 2006) (No. 06-5439); Green, 436 F.3d at 457.

             Accordingly, we affirm Patterson’s 262-month 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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