                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4284



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JAMES EDGAR MUNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:01-cr-00066-2)


Submitted:   September 29, 2008          Decided:   November 13, 2008


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Noell Tin, TIN FULTON GREENE & OWEN, PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                This appeal is before the court following vacation of

James Edgar Munson’s original sentence and remand to the district

court     for    resentencing.       On   appeal,   Munson        argues   that   the

eighty-seven-month sentence imposed on remand violates the Sixth

Amendment;        the district court clearly erred in calculating drug

quantity;        and   the   court     improperly       applied     the    appellate

presumption of reasonableness to a sentence within the sentencing

guidelines.       We affirm.

                Between 1997 and 1999, Munson was involved in a drug

trafficking scheme transporting marijuana from California to the

Charlotte, North Carolina area.            A federal grand jury in Charlotte

charged     Munson     and   several      codefendants     with     conspiring     to

distribute over 1000 kilograms of marijuana, in violation of 21

U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2008), and with conspiracy

to launder money, in violation of 18 U.S.C.A. § 1956(h) (West Supp.

2008).1

                Following a jury trial, Munson was convicted of both

charges.         The   jury’s   verdict     did   not    assign    a   drug   amount

attributable to Munson, but found beyond a reasonable doubt that

the conspiracy as a whole involved at least 1000 kilograms of

marijuana.


     1
      The indictment also charged the defendants with conspiring to
distribute cocaine and crack cocaine, but the court granted a
motion of acquittal on the cocaine charges.

                                           2
            In      the     presentence       report     (“PSR”)      prepared     for

sentencing,      the    probation     officer    determined      that    Munson   was

responsible for at least 1000 kilograms of marijuana, resulting in

a base offense level (and with no adjustments, a total offense

level) of thirty-two on the drug conspiracy count.                         See U.S.

Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(4) (1998). On the

money laundering conspiracy count, Munson’s adjusted base level was

twenty-six. USSG § 2S1.1. According to grouping rules, the higher

offense level of thirty-two controlled.                    USSG § 3D1.3.          This

offense level, together with a criminal history category of I,

yielded an advisory guidelines range of 121 to 151 months.                        USSG

Ch. 5, Pt. A (sentencing table).

            At sentencing, Munson objected to the drug quantity

attributed to him.            The district judge found that “abundant”

evidence supported the determination that at least 1000 kilograms

of marijuana was “reasonably foreseeable” and attributable to

Munson.    Munson was sentenced to concurrent 121-month terms.

            Munson        appealed,   arguing     that    he    was   sentenced    in

violation of United States v. Collins, 415 F.3d 304, 311-15 (4th

Cir. 2005), because the jury failed to determine the specific

amount of drugs attributable to him for purposes of setting a

threshold quantity under § 841(b).                We agreed, vacated Munson’s

sentence,     and      remanded   for    resentencing,         without   addressing

Munson’s    other       arguments     regarding    the    calculation      of     drug


                                          3
quantity.    See United States v. Munson, 181 F. App’x 368 (4th Cir.

2006) (Nos. 04-4288, 04-5015).

             At resentencing, Munson argued that his sentence could

not exceed sixty months, the statutory maximum penalty for the drug

conspiracy count.      See 21 U.S.C.A. § 841(b)(1)(D).          The district

court rejected Munson’s argument, concluding that the guidelines

range remained 121 to 151 months and the statutory maximum of 240

months for the money laundering count would allow imposition of a

sentence within that range.2

             Munson requested a variance sentence, and the district

court granted the request.         The court reduced Munson’s offense

level by three levels, resulting in a guidelines range of 87 to 108

months.   The court sentenced Munson to eighty-seven months on the

money laundering conspiracy count, the bottom of the recalculated

range, and a concurrent term of sixty months on the drug conspiracy

count.

            As he argued below, Munson contends on appeal that his

eighty-seven-month      sentence    exceeds   the     maximum     punishment

authorized by statute for his § 841 conviction and that the court

improperly    relied   on   judicial   fact-finding   to   determine    drug

quantity and exceed the statutory maximum penalty.                  Munson’s

argument fails to recognize that he was sentenced for multiple



     2
      The PSR prepared for Munson’s initial sentencing was also
used for his resentencing.

                                       4
counts,   each   carrying   a   separate   statutory   maximum   penalty.

According to guidelines grouping rules, Munson’s total offense

level of thirty-two prevailed for both counts and resulted in a

single guidelines range of 121 to 151 months.          The imposition of

Munson’s sentence was governed by USSG § 5G1.2, which sets forth

the procedure for sentencing on multiple counts of conviction.

According to USSG § 5G1.2(b), “[e]xcept [in cases not applicable

here], the sentence imposed on each other count shall be the total

punishment” as determined in accordance with Part D of Chapter

Three (grouping rules for offense level determination) and Part C

of Chapter Five (Determining the Sentence).            “If the sentence

imposed on the count carrying the highest statutory maximum penalty

is adequate to achieve the total punishment, then the sentences on

all counts shall run concurrently, except to the extent otherwise

required by law.”     USSG § 5G1.2(c).      The commentary to § 5G1.2

further explains:

     Usually, at least one of the counts will have a statutory
     maximum adequate to permit imposition of the total
     punishment as the sentence on that count. The sentence
     on each of the other counts will then be set at the
     lesser of the total punishment and the applicable
     statutory maximum, and be made to run concurrently with
     all or part of the longest sentence. If no count carries
     an adequate statutory maximum, consecutive sentences are
     to be imposed to the extent necessary to achieve the
     total punishment.

USSG § 5G1.2 cmt. Munson was sentenced in accordance with this

provision.   The total punishment (eighty-seven months) was imposed

on the money laundering conspiracy count, which carried the higher

                                    5
statutory maximum of twenty years (240 months).                     On the drug

conspiracy count, the court imposed the statutory maximum term

(sixty months), to run concurrently.

            Munson’s reliance on Cunningham v. California, 549 U.S.

270 (2007), is likewise unavailing.                 In Cunningham, the Court

applied     “Apprendi’s     bright-line        rule:   Except      for    a   prior

conviction, ‘any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.’”               Cunningham, 549 U.S. at __,

127 S. Ct. at 868 (quoting Apprendi v. New Jersey, 530 U.S. 466,

490 (2000)).       Here, the district court’s determination regarding

drug   quantity     did   not   increase       Munson’s    sentence      above    the

statutory maximum.        Thus, no Sixth Amendment violation occurred.

            Alternatively, Munson contends that the district court

clearly erred in determining that at least 1000 kilograms of

marijuana    was   attributable       to   him.     This   court   reviews       drug

quantity    determinations      for    clear      error.     United      States    v.

Fullilove, 388 F.3d 104, 106 (4th Cir. 2004).                 This deferential

standard of review requires reversal only if this court, upon

reviewing the record as a whole, “is left with the definite and

firm conviction that a mistake has been committed.”                      Easley v.

Cromartie, 532 U.S. 234, 242 (2001) (internal quotation marks and

citation omitted).




                                           6
              Munson contends that he was responsible for only 1235

pounds (560.196 kilograms) of marijuana. Munson’s argument, raised

in detail at his resentencing hearing, hinges on his interpretation

of a Government exhibit detailing Western Union wire transfers. He

claims that certain transactions in this exhibit should have been

deducted from the total dollar amount, and he divides the reduced

dollar amount by an average price per pound.3

              We conclude the district court did not clearly err in

attributing     at   least    1000      kilograms    of     marijuana   to    Munson.

Munson’s own testimony is the primary evidence supporting his

interpretation of the document and his attack on a single exhibit

ignores all the other sources of information.                    As the district

court    concluded    at     the   first       sentencing    hearing,   there     was

“abundant” evidence that over 1000 kilograms of marijuana was

reasonably foreseeable.

              Moreover, as the Government points out, any error is

harmless.      Using Munson’s quantity calculation of 560 kilograms

results in an offense level of twenty-eight under the 1998 version

of the guidelines used in this case, and an advisory guidelines

range    of    seventy-eight       to     ninety-seven       months.         Munson’s

eighty-seven-month sentence is solidly within that range.4


     3
      Munson uses a higher average price per pound than that used
by the Government’s expert.
     4
      Munson does not suggest that, because the court granted a
variance, it is likely that his sentence would have been even lower

                                           7
          Finally, Munson contends that the district court applied

the guidelines in a mandatory fashion because in its discussion of

the sentencing factors under 18 U.S.C.A. § 3553(a) (West 2000 &

Supp. 2008), the court referred to the “reasonableness inherent in

the guideline calculation.”      This argument wholly removes this

statement from its context as part of the court’s consideration and

imposition of a variance sentence.     The record simply provides no

support for the assertion that the court improperly treated the

guidelines as presumptively reasonable. See Rita v. United States,

127 S. Ct. 2456, 2465 (2007) (“[T]he sentencing court does not

enjoy the benefit of a legal presumption that the [g]uidelines

sentence should apply.”).

          Accordingly,   we   affirm   Munson’s   sentence.    We   deny

Munson’s pending motions to expedite, for bail pending appeal, and

to strike portions of the Government’s brief, but we grant Munson’s

motion to file a pro se supplemental brief.5      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


if the court had accepted his calculation and based its guidelines
calculation on his lower drug quantity figure. In any event, the
district court’s remarks at sentencing weigh against such an
argument.
     5
      We have considered the issues Munson raises therein, and find
them to be without merit.

                                  8
