                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4887



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JERRY LEE MERCER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:05-cr-00305-BR)


Submitted: May 30, 2007                        Decided:   July 6, 2007


Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jeffrey M. Brandt, Cincinnati, Ohio, for Appellant. George E. B.
Holding, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          A jury convicted Mercer of one count of possession with

intent to distribute more than five grams of cocaine base in

violation of 21 U.S.C. 841 (a)(1) (2000).            The court sentenced

Mercer to 360 months’ imprisonment.         On appeal,    Mercer raises the

following issues:   whether the district court erred in denying his

motion to suppress evidence gathered after a protective sweep;

whether there was sufficient evidence supporting the possession

with intent to distribute charge; whether the district court erred

by enhancing Mercer’s sentence based upon his prior convictions;

whether the district court erred by punishing Mercer based on

acquitted conduct; whether this Court may constitutionally presume

that a sentence within the correctly calculated guidelines range is

reasonable;   and   whether   the    sentence   is   reasonable.         After

thoroughly reviewing the record, we affirm.

          First,    Mercer    argues    the   officer’s    search   of    his

residence was for evidence, not a protective sweep. In considering

the district court’s denial of a motion to suppress, this Court

reviews legal conclusions de novo, while reviewing factual findings

for clear error.     Ornelas v. United States, 517 U.S. 690, 699

(1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).

Evidence is viewed in the light most favorable to the party who

prevailed in the district court. See United States v. Seidman, 156

F.3d 542, 547 (4th Cir. 1998).         Under Maryland v. Buie, 494 U.S.


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325, 327 (1990), police may conduct a limited search of the areas

immediately adjoining the place of an arrest where a person may be

found in order to assure the safety of police and others.              Id. at

335.   We conclude that the district court properly found that

officers acted reasonably by checking the bedroom to see if a

person or weapon was in the bedroom after Mercer had suddenly moved

into that room.

          Next, Mercer argues the evidence does not demonstrate

that Mercer had possession of the crack cocaine and the Government

did not prove intent to distribute.             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).                 This court

reviews both direct and circumstantial evidence, and permits the

“government 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).

          To    prove   possession       with   intent     to   distribute   a

controlled    substance,     the   government     must   establish    that   a

defendant: (1) knowingly; (2) possessed the control substance; and

(3) intended to distribute the controlled substance. United States

v. Collins, 412 F.3d 515, 519 (4th Cir. 2005).             Possession may be

proven by direct or circumstantial evidence.               United States v.


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Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc).                Intent to

distribute   may   be    inferred    from    a   defendant’s   possession   of

quantities too large for personal consumption.            Burgos, 94 F.3d at

873.

            A police officer testified he saw a baggie containing

crack cocaine on the floor of a bedroom immediately after Mercer

exited the room.        Mercer’s mother, who regularly slept in that

bedroom, testified the crack cocaine was not hers. We conclude the

jury reasonably inferred that Mercer possessed the baggie of crack

cocaine and tried to dispose of it in the bedroom.             In addition, a

Government witness testified that the amount of crack cocaine found

in the baggie was consistent with distribution.             We conclude that

substantial evidence supports the jury’s finding that the amount

found was consistent with the intent to distribute.

            Third, Mercer argues that the district court improperly

considered prior convictions to determine his criminal history

category.    We find the argument is without merit.               Almendarez-

Torres v. United States, 523 U.S. 224, 233-36, 243-44 (1998);

United    States   v.    Cheek,     415   F.3d    349,   351-54   (4th   Cir.)

(reaffirming continuing validity of Almendarez-Torres after United

States v. Booker, 543 U.S. 220 (2005), cert. denied, 126 S. Ct. 640

(2005).

            Fourth, Mercer argues the district court violated his

Fifth and Sixth Amendment right to due process and trial by jury,


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respectively, by punishing him based on acquitted conduct.           Mercer

complains he was held responsible for drug quantities beyond the

amount for which he was found guilty of possessing with intent to

distribute.   It    is   well-established   that    a    district   court’s

consideration of acquitted conduct in calculating a sentence does

not run afoul of constitutional constraints.         E.g., United States

v. Watts, 519 U.S. 148, 155-57 (1997); United States v. Romulus,

949 F.2d 713, 716-17 (4th Cir. 1991).       This rule survives United

States v. Booker, 543 U.S. 220 (2005).      United States v. Williams,

299 F.3d 450, 454 (2d Cir. 2005).           Further, Mercer was not

prejudiced because his base offense level was determined by his

career offender status, not the amount of drugs for which he was

held responsible.   We find that Mercer is not entitled to relief.

          Fifth,    Mercer   contends    that      the    presumption   of

reasonableness this court affords post-Booker sentences imposed

within a properly calculated Guidelines range is unconstitutional.

Our precedent, however, forecloses this argument.              See, e.g.,

United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006),

petition for cert. filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No.

06-5439); United States v. Johnson, 445 F.3d 339, 341-42 (4th Cir.

2006); United States v. Moreland, 437 F.3d 424, 433 (4th Cir.),

cert. denied, 126 S. Ct. 2054 (2006); United States v. Green, 436

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




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one panel of this court cannot overrule another, Mercer’s argument

must fail.

              Finally,    Mercer       contends         his   360-month        sentence    is

unreasonable because consideration of acquitted conduct caused his

criminal history to be overstated, and because the length of his

sentence      is   disproportionate          to     the   crime     for    which    he    was

convicted.         We    review       the     imposition       of     a    sentence       for

reasonableness.         Booker, 543 U.S. at 260-61; United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). After Booker, courts

must     calculate      the       appropriate      guideline      range,       making     any

appropriate factual findings. United States v. Davenport, 445 F.3d

366, 370 (4th Cir. 2006).                The court then should consider the

resulting advisory guideline range in conjunction with the factors

under    18    U.S.C.A.       §    3553(a),       and     determine       an   appropriate

sentence.

              Here the court sentenced at the bottom of the applicable

sentencing guidelines’ range.                 We conclude Mercer is unable to

rebut the presumption of reasonableness due to his extensive

criminal history and find the sentence is reasonable.

              Accordingly, we affirm the judgment of 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


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