                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4117



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES LESTER PENNIEGRAFT,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-454)


Submitted:   March 15, 2006                 Decided:   April 20, 2006


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Bruce A. Lee, BRUCE A. LEE, P.A., Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick
Auld, 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Unpublished opinions are not binding precedent in this circuit.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:

           James Lester Penniegraft pled guilty to conspiracy to

commit loan, mail, wire, and bank fraud, in violation of 18 U.S.C.

§ 371 (2000).    He was sentenced to sixty months in prison.          He now

appeals.   We affirm.

           Penniegraft claims that his sixty month sentence violates

the rule announced in United States v. Booker, 543 U.S. 220 (2005).

Because Penniegraft raised this Sixth Amendment claim below, our

review is de novo.   See United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003).

           Penniegraft’s base offense level was six.             See U.S.

Sentencing Guidelines Manual § 2B1.1(a)(2) (2004).        At sentencing,

the parties stipulated that: the amount of loss was more than

$200,000 and not more than $400,000, for a twelve-level increase in

Penniegraft’s offense level, see USSG § 2B1.1(b)(1)(G); the offense

involved ten or more victims, for an increase of two levels, see

USSG § 2B1.1(b)(2)(A); and Penniegraft was an organizer or leader

of the conspiracy, for a four-level increase, see USSG § 3B1.1(a).

The court determined that Penniegraft had abused a position of

trust and increased the offense level by two levels, see USSG

§ 3B1.3.   Penniegraft’s adjusted offense level therefore was 26.

He    received   a   three-level     adjustment   for    acceptance      of

responsibility, see USSG § 3E1.1(b), for a total offense level of

23.    Penniegraft’s    criminal    history   category   was   III.     His


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resulting    guideline    range      was   57-71   months.   Because    of   the

statutory maximum penalty of five years, see 18 U.S.C. § 371, the

range became 57-60 months.

            Penniegraft claims that the enhancement for abuse of

position of trust violates the Sixth Amendment under Booker.

Without the enhancement, Penniegraft’s adjusted offense level would

have been 24, and his guideline range would have been 63-78 months

in prison.       Because Penniegraft’s sixty-month sentence does not

exceed the maximum penalty authorized by the facts to which he

stipulated,      there   was   no   Sixth    Amendment   violation   requiring

resentencing.      See United States v. Evans, 416 F.3d 298, 300 (4th

Cir. 2005).

            We    accordingly       affirm   Penniegraft’s   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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