                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-5094



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


PAUL H. NOE, a/k/a Paul Noe Randall,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Joseph F. Anderson, Jr., Chief
District Judge. (CR-02-96)


Submitted:   June 28, 2006                 Decided:   July 26, 2006


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Johnny E. Watson, Sr., Columbia, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Kevin F. McDonald,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           This case is before the court after a remand to the

district court for resentencing in light of United States v.

Booker, 543 U.S. 220 (2005), and United States v. Hughes, 401 F.3d

540, 546 (4th Cir. 2005).       Paul H. Noe (a.k.a. Paul Randall) was

convicted by a jury of conspiracy to commit wire fraud, wire fraud,

and inducing the victim of a scheme to defraud to travel in

interstate commerce, 18 U.S.C. §§ 371, 1343, 2314 (2000).           He was

originally sentenced to 78 months of imprisonment, three years of

supervised release, and ordered to pay $645,708.20 in restitution.

We affirmed Noe’s convictions but vacated his sentence and remanded

to the district court for resentencing in accordance with Booker

and Hughes.      See United States v. Noe, No. 04-4047 (4th Cir.

Aug. 10, 2005) (unpublished).

           On remand, the district court conducted a resentencing

hearing;   Noe   did   not   challenge   the   district   court’s   factual

findings in determining the advisory guidelines range.               Those

findings supported enhancements for amount of loss, number of

victims, use of “sophisticated means,” and being an organizer or

leader.    See U.S. Sentencing Guidelines Manual §§ 2B1.1(b)(1)(H),

2B1.1(b)(2)(A), 2B1.1(b)(8)(C), 3B1.1(a) (2004).          Based on a total

offense level of 28 and a criminal history category of I, Noe’s

guidelines sentence range was 78-97 months imprisonment.               The

district court again sentenced Noe to 78 months; he appeals.


                                   - 2 -
              Noe claims, first, that his Fifth and Sixth Amendment

rights    were    violated     because       the   court     determined         by     a

preponderance     of   the    evidence--rather       than    a     jury    beyond      a

reasonable doubt--the factual findings supporting the sentencing

enhancements he received for amount of loss, number of victims, use

of sophisticated means, and being a leader or organizer.                        After

Booker,   a    sentencing    court   is    no   longer     bound    by    the   range

prescribed by the sentencing guidelines.                 See United States v.

Hughes, 401 F.3d at 546.         In a post-Booker sentencing, district

courts must calculate the appropriate guideline range, consider the

range    in   conjunction     with   other      relevant    factors       under      the

guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2004), and

impose a sentence.      Id.    Contrary to Noe’s assertion, the use of

the preponderance of the evidence standard while applying the

guidelines as advisory does not violate the Sixth Amendment.                         See

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005); see also

United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005)

(finding that Booker’s remedy demonstrates that judicial fact

finding by a preponderance of the evidence is unconstitutional only

when it results in mandatory increase in defendant’s sentence);

United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,

126 S. Ct. 43 (2005) (same).              Therefore, Noe’s Fifth and Sixth

Amendment challenges to the calculation of his sentence are without

merit.


                                     - 3 -
          Next, Noe contends that the district court gave Noe more

time than was necessary to achieve the dictates of § 3553(a), given

his age and poor health.       However, the district court clearly

considered both of these factors.    The court took a six-day recess

in order to obtain Noe’s medical records from the Bureau of Prisons

and concluded that he could be properly cared for in prison.

Moreover, Noe’s sentence is presumptively reasonable as it is

within the properly calculated advisory guidelines range and within

the statutory maximum (five years on each of counts one, two, and

four, and ten years on count three).       United States v. Green, 436

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

find that, because the district court appropriately applied the

guidelines as advisory and properly considered the guideline range

as well as the relevant factors under § 3553(a), Noe’s sentence is

reasonable.

          Noe has also filed a motion to file a supplemental pro se

brief in which he addresses counsel’s claims and also asserts that

the sentencing enhancements he received constituted impermissible

“double-counting,” citing Hughes.        However, the court in Hughes,

addressing the enhancement for obstruction of justice, noted that

“[a]n   enhancement   for    obstruction     of    justice   constitutes

impermissible double-counting only when the conduct giving rise to

the enhancement is identical to the conduct giving rise to the

underlying conviction.”     401 F.3d at 558.      Noe did not receive an


                                 - 4 -
enhancement for obstruction of justice.   Therefore, we find that

Noe’s sentencing enhancements did not constitute impermissible

double-counting.   Accordingly, we affirm Noe’s sentence.

          We grant Noe’s motions to file a pro se supplemental

brief and 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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