                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4789



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CESAR JACOBO-MENDOZA, a/k/a Cesar Jacobo,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-74)


Submitted:   September 9, 2005        Decided:   September 26, 2005


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Clifton T.
Barrett, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Following      a     jury   trial,    Cesar     Jacobo-Mendoza      was

convicted of one count of conspiracy to possess with intent to

distribute in excess of five kilograms of a mixture and substance

containing    a   detectable      amount   of    cocaine    hydrochloride,       in

violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 (2000); and one

count of possession with intent to distribute approximately 10.683

kilograms of cocaine hydrochloride, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A) (2000).            Jacobo-Mendoza appeals both his

conviction and his resulting 151-month sentence.                 We affirm.

           Jacobo-Mendoza first challenges the sufficiency of the

evidence resulting in his conviction.            A defendant challenging the

sufficiency of the evidence “bears a heavy burden.”                United States

v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citation omitted).

To   determine    if    there   was    sufficient   evidence      to   support    a

conviction, this court considers whether, taking the evidence in

the light most favorable to the Government, substantial evidence

supports the jury’s verdict.           Glasser v. United States, 315 U.S.

60, 80 (1942) (citation omitted); United States v. Wills, 346 F.3d

476, 495 (4th Cir. 2003) (citation omitted).                The court reviews

both   direct     and    circumstantial        evidence    and    permits     “the

[G]overnment the benefit of all reasonable inferences from the

facts proven to those sought to be established.”              United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citations omitted).


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Witness credibility is within the sole province of the jury, and

the court will not reassess the credibility of testimony.                      United

States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (citations

omitted).     Here, there was ample evidence on which to convict

Jacobo-Mendoza.        Based on the physical evidence seized at the

scene, what the officers saw, and the facts in the case that were

not disputed, a reasonable jury could conclude that the evidence

was sufficient to support Jacobo-Mendoza’s conviction.

            Jacobo-Mendoza         next       argues   that   the   district    court

violated his Sixth Amendment rights by enhancing his sentence for

“obstruction of justice” pursuant to the U.S. Sentencing Guidelines

Manual § 3C1.1 (2003), on facts not alleged in the indictment, not

admitted by Jacobo-Mendoza, and not found by a jury beyond a

reasonable doubt, in violation of United States v. Booker, 125 S.

Ct. 738 (2005).      As Jacobo-Mendoza properly raised this issue in

the district court by objecting to his sentence factually and based

on Blakely v. Washington, 542 U.S. 296 (2004), we review de novo.

See United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003)

(“If   a   defendant    has    made       a   timely   and    sufficient   Apprendi

sentencing objection in the trial court, and so preserved his

objection,    we   review     de   novo.”)        (citation   omitted).        When   a

defendant preserves a Sixth Amendment error, this court “must

reverse unless [it] find[s] this constitutional error harmless

beyond a reasonable doubt, with the Government bearing the burden


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of proving harmlessness.”           Id. (citations omitted); see United

States v. White, 405 F.3d 208, 223 (4th Cir. 2005) (discussing

difference in burden of proving that error affected substantial

rights under harmless error standard in Fed. R. App. P. 52(a) and

plain error standard in Fed. R. App. P. 52(b)).

             The    presentence     report       calculated   Jacobo-Mendoza’s

guideline range to be 151 to 188 months in prison.                  This finding

was based on an offense level of thirty-two (based on a drug amount

of between five and fifteen kilograms of cocaine hydrochloride),

plus a two-level increase for obstruction of justice pursuant to

the U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2003),

resulting in a total offense level of thirty-four, combined with a

criminal history category of I.                  The district court rejected

Jacobo-Mendoza’s       objection      to     the    obstruction     of    justice

enhancement,       adopted   the   presentence      report,   and   imposed   two

concurrent    sentences      of    151    months’    imprisonment.        Without

consideration of the challenged obstruction of justice enhancement,

Jacobo-Mendoza would have had an offense level of thirty-two.

Coupled with a criminal history level of I, this would have

resulted in a guideline range of 121 to 151 months.                      See USSG

Sentencing Table.       Thus, even conceding that the obstruction of

justice enhancement was impermissible, no Sixth Amendment violation

occurred because the actual sentence imposed upon Jacobo-Mendoza,

151 months, does not exceed the maximum unenhanced guideline range.


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See United States v. Evans, 416 F.3d 298, 300-01, (4th Cir. 2005)

(holding that if sentence does not exceed maximum authorized by

facts admitted by defendant or found by jury, there is no Sixth

Amendment violation).

            Accordingly, we affirm Jacobo-Mendoza’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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