                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5211



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JAMES GOLLICK,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (1:03-cr-00160)


Submitted:   November 21, 2007         Decided:     December 11, 2007


Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sante E. Boninsegna, Jr., Pineville, West Virginia, for Appellant.
John J. Frail, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          James Gollick pled guilty to possession with intent to

distribute a quantity of oxycodone, also known as oxycontin, in

violation of 21 U.S.C. § 841(a)(1) (2000), and the district court

sentenced him to eighty-seven months in prison and three years of

supervised release.   On appeal, we affirmed Gollick’s conviction,

vacated his sentence, and remanded for resentencing in accordance

with United States v. Booker, 543 U.S. 220 (2005).    On remand, the

district court resentenced Gollick to seventy months in prison and

three years of supervised release.     Gollick’s attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting, in his opinion, there are no meritorious grounds for

appeal but raising the issues of whether the district court erred

in sentencing to him to seventy months based on its determination

of drug weight following conversion of the pills attributed to him

to marijuana for sentencing purposes, and the increase in his

sentence based on Blakely v. Washington, 542 U.S. 296 (2004).

Gollick was advised of his right to file a pro se supplemental

brief but has not done so.   Finding no error, we affirm.

          We will affirm a sentence imposed by the district court

as long as it is within the statutorily prescribed range and

reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).

Although the guidelines are no longer mandatory, they must still be

consulted and taken into account when sentencing. Booker, 543 U.S.


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at   264.      An    error   of   law    or     fact   can   render    a   sentence

unreasonable.        United States v. Green, 436 F.3d 449, 456 (4th

Cir.), cert. denied, 126 S. Ct. 2309 (2006).                 We review a district

court’s factual findings for clear error and its legal conclusions

de novo.      United States v. Hampton, 441 F.3d 284, 287 (4th Cir.

2006).      Issues not raised in the district court are reviewed for

plain error.        Hughes, 401 F.3d at 547.

             When sentencing, the district court must:                (1) properly

calculate the guideline range; (2) determine whether a sentence

within that range serves the factors under 18 U.S.C. § 3553(a)

(2000); (3) implement mandatory statutory limitations; and (4)

explain its reasons for selecting a sentence, especially a sentence

outside the range.        Green, 436 F.3d at 455-56.           A sentence within

a properly calculated range is presumed to be reasonable.                     Id. at

457; see Rita v. United States, 127 S. Ct. 2456 (2007) (upholding

presumption). This presumption can only be rebutted by showing the

sentence is unreasonable when measured against the § 3553(a)

factors.      United States v. Montes-Pineda, 445 F.3d 375, 379 (4th

Cir. 2006), cert. denied, 127 S. Ct. 3044 (2007).

             At   Gollick’s   initial     sentencing,        the   district   court

determined his base offense level was twenty-eight under U.S.

Sentencing Guidelines Manual § 2D1.1(c) (2001) after adopting

findings in the presentence report that he was responsible for 3100

eighty-milligram oxycontin tablets.              With a three-level reduction


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for acceptance of responsibility and criminal history category III,

Gollick’s guideline range was seventy to eighty-seven months.

Although Gollick did not object to the presentence report, we

concluded his silence did not constitute an admission under Booker

and the district court plainly erred by sentencing him under the

mandatory guidelines based on its findings. On remand, we directed

the district court to first determine the appropriate sentencing

range under the guidelines, making all factual findings appropriate

for that determination, and then to consider that range along with

the other § 3553(a) factors when imposing a sentence.

             At the resentencing hearing, the district court noted it

was under direction to calculate the guideline range by finding

drug quantities by a preponderance of the evidence and to impose a

sentence that was reasonable under the circumstances of the case,

taking the guidelines into consideration and recognizing the fact

that the guidelines were no longer mandatory.    Gollick requested a

recalculation of the guideline range based only on the ninety and

one-half pills seized from him, contending the Government’s other

evidence was hearsay and he never had an opportunity to cross

examine any of the people on which the original presentence report

was based.    Gollick did not, however, testify or provide any other

evidence or argument specifically challenging the number of pills

or weight of the drugs attributed to him in the presentence report.

The Government argued that in addition to the pills seized from


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Gollick,   the    relevant   conduct     was    largely   based   on   his   own

statements.      Further, if Gollick did in fact challenge relevant

conduct, the Government would question whether he would be entitled

to a reduction for acceptance of responsibility.

           The district court overruled Gollick’s objection and

adopted its factual findings and guideline calculations from the

original sentencing. Therefore, Gollick’s advisory guideline range

was seventy to eighty-seven months.            The court then heard argument

as to where Gollick should be resentenced.                Gollick’s counsel

requested the bottom of the range, based on his considerable

efforts to reform himself since his original sentencing and the

fact that seventy months was sufficient punishment for the charge.

Gollick apologized to the court for his behavior during the last

sentencing hearing, and to his family and others affected by his

bad choices while he was involved with drugs.             The district court

resentenced Gollick to seventy months.            The court explained it had

reduced his sentence from the top of the guideline range to the

bottom, because the court was impressed with the progress he had

made, as evidenced by the materials he submitted documenting the

programs he had completed, as well as his change in attitude.

           In    the   Anders   brief,   counsel     questions    whether    the

district court erred in determining the drug weight for sentencing

purposes and increasing his sentence based on that calculation, but

he concludes that the guideline range was properly calculated.                He


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also notes that Gollick’s sentence on remand was reduced seventeen

months from his original sentence.            Based on our review of the

record, we conclude the district court did not clearly err in

adopting its previous findings regarding relevant conduct based on

a preponderance of the evidence, and the court properly calculated

the guideline range.        We further conclude that Gollick’s sentence

at the bottom of the range was reasonable.

           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   We therefore affirm the district court’s judgment.               This

court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for

further review.    If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel   may   move   in    this   court    for   leave   to   withdraw   from

representation.    Counsel’s motion must state that a copy thereof

was served on the client.

           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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