                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4278



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


SHAWN ANDRE ALSTON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:06-cr-00200-D)


Submitted:   October 31, 2007             Decided:   January 29, 2008


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Shawn Andre Alston pled guilty to possession of a firearm

by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was

sentenced to a term of 120 months imprisonment. Alston appeals his

sentence, arguing that the district court erred in applying the

cross    reference      in        U.S.     Sentencing       Guidelines      Manual

§ 2K2.1(c)(1)(A) (2006). He maintains that (1) the cross reference

does not apply to completed crimes; (2) application of the cross

reference in his case violates his Fifth and Sixth Amendment rights

under United States v. Booker, 543 U.S. 220 (2005), and (3)

application of the cross reference in his case constitutes an

unconstitutional delegation of executive and Congressional power.

Although Alston contested the application of the cross reference in

the district court, he did not contest it on the first and last

grounds he raises here. We therefore review these issues for plain

error,   United    States    v.    Olano,    507     U.S.   725,   732-37   (1993)

(unpreserved error may be corrected only if error occurred, that

was plain, and that affects substantial rights, and if failure to

correct error would seriously affect the fairness, integrity, or

public reputation of judicial proceedings).                 We conclude that he

has not identified any reversible error, and affirm.

           In     the   presentence        report,    the    probation      officer

recommended that Alston’s offense level be calculated pursuant to

§ 2K2.1(c)(1)(A) cross referenced to USSG § 2X1.1, which increased


                                         - 2 -
his offense level under USSG § 2D1.1 for possession of a firearm in

connection with drug trafficking.                  At his sentencing hearing,

Alston      objected    unsuccessfully        to   application       of    the   cross

reference      and     consideration     of    information        provided     by   the

confidential informant on the grounds that these facts were not

charged in the indictment or proved beyond a reasonable doubt.*

              On appeal, Alston first contends that the cross reference

was wrongly applied because the district court found that he had

committed a completed offense (drug trafficking) and, therefore,

§   2X1.1    could     not   apply   because       it    addresses      conspiracies,

attempts, and solicitations.            He relies on dicta in United States

v. Bellamy, 264 F.3d 448 (4th Cir. 2001), which is inapposite.                       We

conclude     the     district   court   did     not     plainly   err     in   applying

§ 2K2.1(c)(1)(A).

              Alston’s contention of Fifth and Sixth Amendment error

under Apprendi and Booker is also unavailing.                     After Booker, the

sentencing court still must calculate the applicable guideline

range after making the appropriate findings of fact. United States

v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006).         Alston argues that his case is an exception, but

provides no convincing support for his position. Nor did the court

err by using the preponderance of the evidence standard of proof.


      *
      In this appeal, Alston does not contest the district court’s
factual finding that he possessed a firearm in connection with drug
trafficking.

                                        - 3 -
See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005)

(holding that, after Booker, judges will continue to make decisions

about sentencing factors by preponderance of evidence without

violating Sixth Amendment), cert. denied, 127 S. Ct. 121 (2006).

             Last, Alston maintains that application of the cross

reference in his case unconstitutionally transferred executive and

Congressional powers to the judiciary.        This claim is contrary to

the Supreme Court’s holdings in Mistretta v. United States, 488

U.S. 361, 412 (1989), that “in creating the Sentencing Commission

. . . Congress neither delegated excessive legislative power nor

upset the constitutionally mandated balance of powers among the

coordinate Branches.”        See also Booker, 543 U.S. at 243 (“Nothing

in   our   holding   today    is   inconsistent   with   our   decision   in

Mistretta.”).

             We therefore affirm the sentence imposed by the district

court.     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




                                    - 4 -
