                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4005



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JUANITA VALERIO,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-03-505)


Submitted:   October 31, 2006             Decided:   March 20, 2007


Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John C. Kiyonaga, KIYONAGA & KIYONAGA, Alexandria, Virginia, for
Appellant.   Chuck Rosenberg, United States Attorney, Kelli H.
Ferry, Assistant United States Attorney, Michael J. Frank, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Juanita Valerio pled guilty, without a plea agreement, to

conspiracy to distribute 500 grams or more of cocaine, in violation

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

in 2004 to a 135-month term of imprisonment.          In light of United

States v. Booker, 543 U.S. 220 (2005), we vacated her sentence and

remanded for resentencing.      United States v. Valerio, 149 F. App’x

187 (4th Cir. 2005) (No. 04-4318).        On remand, the district court

resentenced Valerio to 135 months in prison.              She appeals her

sentence on the ground that the district court did not adequately

consider the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2006), and that the court gave excessive weight to the advisory

sentencing guideline range.      We affirm.

           In a post-Booker sentencing, the district court must

calculate the advisory guideline range and then consider whether

that range “serves the factors set forth in § 3553(a) and, if not,

select a sentence that does serve those factors.” United States v.

Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309

(2006).   This court reviews a post-Booker sentence “to determine

whether the sentence is within the statutorily prescribed range and

is reasonable.”     United States v. Moreland, 437 F.3d 424, 433 (4th

Cir.)   (internal   quotation   marks    and   citation   omitted),   cert.

denied, 126 S. Ct. 2054 (2006).         “[A] sentence within the proper

advisory Guidelines range is presumptively reasonable.”               United


                                  - 2 -
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (citations

omitted).      “[A]   defendant     can   only    rebut   the    presumption    by

demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors.”           United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and

citation omitted), petition for cert. filed, __ U.S.L.W. __ (U.S.

July 21, 2006) (No. 06-5439).

            In sentencing Valerio, the district court considered the

arguments of counsel and rejected Valerio’s claim that a sentence

below    the   properly     calculated    advisory     guideline      range    was

warranted based upon her family circumstances, the procedural

history of her case, the sentencing disparity between her sentence

and the sentence her husband received, her immigration status, and

her ineligibility for a prison drug program.               Our review of the

record    convinces    us    that   Valerio      has   failed    to   rebut    the

presumption of reasonableness accorded to sentences within the

properly calculated advisory guideline range.               Finally, although

Valerio     asserts   that    the   district      court   gave    the   advisory

sentencing guideline range excessive weight, we do not agree. The

district court was not free to reject the Sentencing Commission’s

determination that certain drug amounts warrant a particular base

offense level.        See Johnson, 445 F.3d at 344-45 (refusing to

disregard grouping provisions in sentencing guidelines); United

States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006) (finding district


                                     - 3 -
court’s   rejection   of   100:1   crack   to   powder   cocaine   ratio   is

unreasonable and “impermissibly usurps Congress’s judgment about

the proper sentencing policy for cocaine offenses”) (internal

quotation marks and citation omitted), petition for cert. filed, __

U.S.L.W. __ (U.S. June 20, 2006) (No. 05-11659).

           Accordingly, we affirm Valerio’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




                                   - 4 -
