                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4888



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOSEPHINE VIRGINIA GRAY, a/k/a       Josephine
Mills, a/k/a Josephine Stribbling,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, District Judge.
(8:01-cr-00566-DKC)


Submitted:   September 18, 2007           Decided:   November 5, 2007


Before TRAXLER and SHEDD, Circuit Judges, and Norman K. MOON,
United States District Judge for the Western District of Virginia,
sitting by designation.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, Sandra Wilkinson, James M. Trusty, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Josephine Gray appeals her 480-month sentence, imposed upon

resentencing,1 of her jury convictions on all counts of an eight-

count indictment charging five counts of mail fraud in violation of

18 U.S.C. § 1341 (2000) and three counts of wire fraud in violation

of 18 U.S.C. § 1343 (2000).           On appeal, Gray asserts that the

district court (1) erred in applying the cross-reference provision

of the fraud guideline, U.S.S.G. § 2F1.1, to the first-degree

murder guideline, U.S.S.G. § 2A1.1, rather than the second-degree

murder   guideline,   U.S.S.G.    §    2A1.2,     because     the   counts   of

conviction    set   forth   in   the       indictment   did   not    establish

premeditated, first-degree murder; (2) violated the Due Process

Clause of the Fifth Amendment by finding her relevant conduct and

advisory guideline range based on a preponderance of the evidence

standard and (3) unreasonably varied from the advisory guideline

range.   We affirm.

     After Booker, a district court is no longer bound by the range

prescribed by the sentencing guidelines.          United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005).            Nevertheless, a court still

must initially calculate the appropriate guidelines range, making

any appropriate factual findings.          United States v. Davenport, 445



     1
      In our earlier decision, we affirmed Gray’s conviction for
mail fraud and wire fraud, but vacated her sentence and remanded
for resentencing consistent with United States v. Booker, 543 U.S.
220 (2005). United States v. Gray, 405 F.3d 227 (4th Cir. 2005).

                                       2
F.3d 366, 370 (4th Cir. 2006).               The court then considers the

resulting advisory guidelines range in conjunction with the factors

under 18 U.S.C. § 3553(a) (2000), and determines an appropriate

sentence.      Davenport, 445 F.3d at 370.        This Court will affirm a

post-Booker sentence if it is within the statutorily prescribed

range and is reasonable.      Hughes, 401 F.3d at 546-47.           A sentence

within   the    proper   advisory    Guidelines    range   is   presumptively

reasonable.      United States v. Green, 436 F.3d 449, 457 (4th Cir.

2006), cert. denied, 126 U.S. 2309, (2006); see also                  Rita v.

United States, --- U.S. ----, 127 S. Ct. 2456, 2462 (2007) (“[A]

court of appeals may apply a presumption of reasonableness to a

district court sentence that reflects a proper application of the

Sentencing Guidelines.”).

     At the resentencing hearing, the district court applied the

cross-reference     provision       of   the   fraud   guideline,     U.S.S.G.

§ 2F1.1,2 to the first-degree murder guideline, U.S.S.G. § 2A1.1.

Gray concedes that the cross-reference was appropriate, as the



     2
      The parties disagreed with the Probation Office over whether
the 2000 or 2002 Sentencing Guidelines should apply because of
changes to the fraud guideline within the 2002 Guidelines. The
district court determined that the 2002 fraud guideline, § 2B1.1,
did not violate the Ex Post Facto Clause of the Fifth Amendment,
but, in an abundance of caution, applied both the 2000 fraud
guideline, § 2F1.1, and, alternatively, the 2002 fraud guideline,
§ 2B1.1, in reaching the same sentence.      At resentencing, the
district court applied only the 2000 fraud guideline, § 2F1.1,
because the 2005 fraud guideline had been modified to impose a
higher base offense level for second-degree murder, which, if
applied, could have violated the ex post facto clause.

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conduct set forth in the indictment is more accurately reflected in

a guideline other than § 2F1.1, but asserts that the counts of

conviction    set   forth   in    the       indictment       establish    only    an

intentional killing, not a premeditated one.                  Thus, Gray argues

that the district court should have cross-referenced to the second-

degree murder guideline, U.S.S.G. § 2A1.2, not the first-degree

guideline, U.S.S.G. § 2A1.1.        First-degree murder, as defined by

federal   law,   includes   any    killing       that    is     either    willful,

deliberate,   malicious,    and    premeditated         or    committed    in    the

perpetration of an enumerated felony.           18 U.S.C. § 1111(a) (2000);

see also U.S. v. Williams, 342 F.3d 350, 355 (4th Cir. 2003).                    The

question then is whether the language of the indictment clearly

articulates premeditated, first-degree murder.                  We find that it

does.

      The indictment charges Gray, in conjunction with her co-

schemers, with knowingly and willfully devising a scheme to defraud

the life insurance companies that insured her husband, William

Gray, and intentionally causing the death of William Gray in

furtherance of that scheme.       (J.A. 22, Indictment ¶¶ 14, 15.)               The

indictment further charges Gray with devising a similar scheme to

defraud the life insurance companies that insured her lover,

Clarence Goode, and intentionally causing the death of Clarence

Goode in furtherance of that scheme.            (J.A. 22, Indictment ¶¶ 6,

7.)     As a result, the indictment clearly depicts conduct of


                                        4
premeditation and deliberation by the defendant.                Therefore, we

find that the district court’s cross-reference to U.S.S.G. § 2A1.1

was   appropriate    because    the    counts   of   conviction    within     the

indictment clearly set forth premeditated murder.

      Gray also argues that the district court violated the Due

Process   Clause     by     adopting    factual      findings   based    on     a

preponderance   of    the    evidence    standard.      Contrary    to   Gray’s

argument, a district court, even after Booker, may properly make

factual findings concerning sentencing factors by a preponderance

of the evidence.     See United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005).

      Finally, Gray argues the district court unreasonably varied

from the advisory guidelines range when it imposed a 40-year term

of imprisonment rather than the advisory guideline range of 135-168

months. At resentencing, the district court imposed a 40-year term

of imprisonment by an upward variance as an alternative ruling in

the event that it had incorrectly applied the cross-reference to

first-degree murder.         Because we previously concluded that the

district court properly applied the cross-reference to the first-

degree murder guideline, we need not address whether the district

court’s upward variance was unreasonable.

      Accordingly, we affirm Gray’s sentence. We dispense with oral

argument because the facts and legal contentions are adequately




                                        5
presented in the materials before the court and argument would not

aid the decisional process.

                                                         AFFIRMED




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