                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-5160



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RONALD FITCH,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-74)


Submitted:   March 10, 2006                 Decided:   April 5, 2006


Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Dennis H. Curry, Spencer, West Virginia, for Appellant. Charles T.
Miller, Acting United States Attorney, Monica L. Dillon, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ronald Fitch pled guilty to distribution of cocaine base,

in violation of 21 U.S.C. § 841(a)(1) (2000).                    The district court

sentenced       Fitch,        under    the    formerly     mandatory        sentencing

guidelines,      to      seventy-eight        months’     imprisonment.            Fitch

challenged his sentence on appeal, arguing that his offense level

was   calculated,        in    part,    based     on   judicial     fact-finding      in

violation of United States v. Booker, 543 U.S. 220 (2005).                            We

agreed, vacating his sentence because it was greater than that

authorized by the facts he admitted in his guilty plea.                           United

States     v.    Fitch,        No.    04-4828     (4th    Cir.    July     20,     2005)

(unpublished).        Thus, we remanded his case to the district court

for resentencing in accordance with Booker.

            At his resentencing hearing, Fitch asserted that the

district court was obligated to find beyond a reasonable doubt all

facts relevant to the imposition of his sentence.                         The district

court rejected this argument and, based on Fitch’s good behavior

and the measures undertaken to treat his drug addiction, imposed a

sentence    of    seventy-five         months’     imprisonment.          Fitch    again

appeals, contending the district court erroneously made factual

findings using a preponderance of the evidence standard.

            After     the       Supreme      Court’s     decision    in     Booker,    a

sentencing court is no longer bound by the range prescribed by the

sentencing guidelines.           See United States v. Hughes, 401 F.3d 540,


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546    (4th    Cir.     2005).       However,      in   determining   a   sentence

post-Booker, sentencing courts are still required to calculate and

consider the guideline range prescribed thereby as well as the

factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & 2005

Supp.).       Id.    As stated in Hughes, we will affirm a post-Booker

sentence if it is both reasonable and within the statutorily

prescribed range.           Id. at 546-47; see also United States v. Green,

436 F.3d 449, 455-56 (4th Cir. 2006).

              “Consistent with the remedial scheme set forth in Booker,

a     district      court    shall   first   calculate      (after    making   the

appropriate         findings    of   fact)   the    range    prescribed   by   the

guidelines.”         Hughes, 401 F.3d at 546.           “The remedial portion of

Booker held that decisions about sentencing factors will continue

to be made by judges, on the preponderance of the evidence, an

approach that comports with the [S]ixth [A]mendment so long as the

guideline system has some flexibility in application.”                     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); United

States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S.

Ct. 43 (2005).

              In light of these principles, we find no Booker error

committed by the district court in its resentencing of Fitch.

Furthermore, we reject Fitch’s contention that his sentence based

on the court’s factual findings by a preponderance of the evidence


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violated    the   Fifth   Amendment.   Accordingly,   we   affirm    Fitch’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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