                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 06-5260



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


ALVIN DONALD BANKS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00172-H)


Submitted:   February 5, 2008             Decided:   July 23, 2008


Before MICHAEL, TRAXLER, and KING, Circuit Judges.


Affirmed in part, vacated and remanded in part by unpublished per
curiam opinion.


John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE,
Raleigh, North Carolina, for Appellant.   George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Alvin Donald Banks appeals his conviction and 120-month

sentence following his guilty plea to one count of possession of a

firearm after having been convicted of a crime punishable by more

than one year of imprisonment, in violation of 18 U.S.C. § 922(g)

(2000).   We affirm Banks’s conviction but vacate his sentence and

remand for reconsideration.

             In the presentence report (PSR), the probation officer

noted that Banks possessed the firearm and ammunition while also in

possession of crack cocaine, marijuana, digital scales, and drug

packaging materials.       He therefore applied the cross-reference

provision      of   U.S.    Sentencing        Guidelines    Manual     (USSG)

§ 2K2.1(c)(1)(A) (2006), which resulted in the application of the

Guidelines for distribution or possession with intent to distribute

controlled substances, § 2D1.1.         Banks objected to application of

the cross-reference to the drug Guidelines, arguing that this

increase in his offense level violated his due process and Eighth

Amendment rights.     He also objected to the crack/powder cocaine

sentencing    disparity    in   the   Guidelines.     The   district   court

overruled Banks’s objections and sentenced him to 120 months of

imprisonment, three years of supervised release, and a $100 special

assessment.    Banks timely appealed.

            Banks first argues that his guilty plea is invalid

because the magistrate judge lacked authority to take a guilty plea


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and because he did not validly consent to proceed before the

magistrate judge.         We conclude that these arguments are without

merit.       Banks asserts the magistrate judge did not have authority

to take a guilty plea on a felony indictment based on the local

rules for the District Court for the Eastern District of North

Carolina.         Banks correctly notes the limitations in the local

rules, but overlooks a provision allowing a magistrate judge to

“perform any additional duty consistent with the Constitution and

laws of the United States.”               E.D.N.C. Local Civ. R. 72.3(h)(16).

This language is consistent with the statutory language governing

the authority of magistrate judges.               28 U.S.C. § 636(b)(3) (2000).

This Court recognizes the authority of a magistrate judge to

conduct guilty plea proceedings, in part based on the language of

§ 636(b)(3).        United States v. Osborne, 345 F.3d 281, 285 (4th Cir.

2003).        The   magistrate     judge       acted   within    his    authority    in

conducting the plea hearing.

               Banks also asserts that he did not validly consent to

enter    a    guilty    plea     before    a    magistrate      judge   because     the

magistrate judge did not adequately explain his right to proceed

before a district judge and the form he signed refers to an

arraignment rather than a guilty plea.                  Our review of the record

leads us to conclude that, although more specific advice and a form

specifically addressed to a guilty plea are desirable, in the

context      of   the   entire    hearing,      Banks   clearly     understood      the


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purposes of the hearing and validly consented to proceed before the

magistrate judge.

               Banks next argues that his sentence violated his Fifth

and Sixth Amendment rights because it is based on conclusions by

the   district      court    to   apply    the    cross-reference    to   the   drug

distribution or possession with intent to distribute Guideline,

which resulted in a sentence based on a crime other than the felon-

in-possession count to which he pleaded guilty.                      We review a

sentence imposed by the district court under an abuse-of-discretion

standard.       Gall v. United States, 128 S. Ct. 586, 597 (2007).                   In

considering the district court’s application of the Guidelines, we

review factual findings for clear error and legal conclusions de

novo.      United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).

               In a related argument, Banks asserts that the court erred

in its fact-finding by applying the drug distribution Guideline

rather that the simple possession Guideline. Following United

States v. Booker, 543 U.S. 220 (2005), a sentencing court continues

to    make    factual      findings    concerning    sentencing     factors     by    a

preponderance of the evidence.               United States v. Morris, 429 F.3d

65,   72     (4th   Cir.    2005).      In    this   case,   the   district     court

specifically noted the advisory nature of the Guidelines and stated

that it had considered the sentencing factors in 18 U.S.C.A.

§    3553(a)    (West      2000   &   Supp.   2007).     The   district    court’s

application of the drug distribution cross-reference under the


                                          - 4 -
advisory Guidelines therefore did not violate Banks’s Fifth or

Sixth Amendment rights.

            We   also   conclude   that    the   district   court   correctly

applied the Guideline for drug distribution or possession with

intent to distribute, § 2D1.1. Banks not only possessed controlled

substances and was present in an apartment where evidence of drug

distribution was discovered, but he admitted flushing an ounce of

crack cocaine down the toilet as the officers arrived, thereby

attempting to conceal those drugs from the authorities. This court

has held repeatedly that possession with intent to distribute may

be inferred from the quantity of drugs possessed. United States v.

Bell, 954 F.2d 232, 235 (4th Cir. 1992) (“thirteen plus grams of

crack . . . is a ‘large quantity’, supporting the fact finder’s

inference that an intent to distribute existed.”).

            Banks also asserts that his sentence is unconstitutional

based on the disparity between the Guidelines for crack and powder

cocaine.     Counsel asserted an objection at sentencing on this

basis.     Since the parties’ briefs were filed, the Supreme Court

decided, in Kimbrough v. United States, 128 S. Ct. 558 (2007), that

“it would not be an abuse of discretion for a district court to

conclude    when   sentencing      a     particular   defendant     that   the

crack/powder disparity yields a sentence ‘greater than necessary’

to achieve § 3553(a)’s purposes, even in a mine-run case.” Id. at

575.     Kimbrough thus abrogated this Court’s decision in United


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

100:1 ratio cannot be the basis of a variance), vacated, __ S. Ct.

__,   2008   WL   59208   (U.S.   Jan.   7,   2008)   (No.   05-11659).   In

determining Banks’s sentence, the district court did not have the

benefit of the Supreme Court’s recent decision in Kimbrough, and

the record is insufficient to determine whether the court would

have imposed a lower sentence upon consideration of that decision.

             Finally, Banks asserts that the district court erred in

determining his sentence based on incorrect conclusions regarding

the number of children Banks had fathered and that he was subject

to an enhanced sentence as an armed career criminal.             We need not

resolve these claims, as Banks may raise them before the district

court at the resentencing hearing.

             Accordingly, we affirm Banks’s conviction, but vacate his

sentence and remand for reconsideration in light of Kimbrough.            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 IN PART;
                                              VACATED AND REMANDED IN PART




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