                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4562



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


RENANTE BONITO QUERUBIN,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-04-2)


Submitted:   August 24, 2005                 Decided:   October 11, 2005


Before LUTTIG, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Robert B. Rigney, PROTOGYROU & RIGNEY, P.L.C., Norfolk, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Laura M. Everhart, Assistant United States Attorneys,
Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Renante Bonito Querubin was convicted of possession with

intent to distribute 73.91 grams of methamphetamine in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) (2000), and possession of

a firearm in furtherance of a drug trafficking crime in violation

of 18 U.S.C. § 924(c)(1) (2000). We affirm Querubin’s convictions,

but we vacate his sentence and remand for resentencing in light of

United States v. Booker, 125 S. Ct. 738 (2005).

           Querubin claims the district court erred when it denied

his motion to suppress his statements to the police because police

officers violated his right to remain silent under Miranda v.

Arizona, 384 U.S. 436 (1966).           This court reviews the district

court’s factual findings underlying a motion to suppress for clear

error and the district court’s legal determinations de novo.

Ornelas v. United States, 517 U.S. 690, 699 (1996).                  A defendant

may waive his constitutional rights to remain silent and to have

counsel   present    if   he   does    so     “voluntarily,    knowingly     and

intelligently.”     Miranda, 384 U.S. at 444.

           Querubin claims he could not understand the Miranda

warnings because he is not fluent in English.               While the limited

ability   to   understand   English     may    render   a   waiver    of   rights

defective, a language barrier will not necessarily frustrate an

effective waiver.     See United States v. Guay, 108 F.3d 545, 549

(4th Cir. 1997).    The police officers read Querubin his rights in


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English and he responded in English that he understood those

rights.    The district court listened to a tape recording of the

interview and noted that Querubin answered the questions in English

with detail.     The language barrier did not frustrate an effective

waiver of Querubin’s Miranda rights and the district court did not

err when it denied his motion to suppress.

              Querubin claims that the district court erred when it

denied his motion in limine to exclude witness testimony about

Querubin’s prior drug possession.        The decision to admit evidence

is reviewed on appeal for an abuse of the trial court’s discretion;

the relevant inquiry therefore is whether the district court’s

exercise of discretion was “arbitrary or irrational.”          See United

States v. Ellis, 121 F.3d 908, 926 (4th Cir. 1997).

              The witnesses testified about events during the year

prior to      Querubin’s arrest, but did not testify about the events

charged in the indictment.     The witness testimony provided context

and was probative of Querubin’s methamphetamine activities. “While

[Fed. R. Evid.] Rule 404(b) forecloses admission of similar acts

evidence simply to prove a defendant’s bad character, it permits

such evidence where necessary to provide the context or res gestae

of the charged offenses.”      United States v. Brewer, 1 F.3d 1430,

1436   (4th    Cir.   1993).   The    testimony   was   relevant   to   show

Querubin’s intent to distribute the methamphetamine, the events

testified about occurred only a few months prior to his arrest, the


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testimony was reliable because it was similar in many respects to

Querubin’s   statement    to   the   police,      and   it   was   not   unfairly

prejudicial to Querubin. See United States v. Queen, 132 F.3d 991,

994-95 (4th Cir. 1997).        The district court did not abuse its

discretion in denying Querubin’s motion in limine and admitting

into evidence the witnesses’ testimony.

            Querubin next claims that the district court erred at

sentencing when it denied him a two-point reduction for acceptance

of responsibility. Querubin did not plead guilty; instead, he went

to trial.    The adjustment for acceptance of responsibility “is not

intended to apply to a defendant who puts the government to its

burden of proof at trial.”           U.S. Sentencing Guidelines Manual,

§ 3E1.1, comment. (n.2) (2003).         A defendant may go to trial and

still receive an adjustment for acceptance of responsibility, but

such circumstances are rare and only warranted if the defendant

went to trial “to assert and preserve issues that do not relate to

factual guilt.”    Id.    The district court did not clearly err when

it found that Querubin did not qualify for an acceptance of

responsibility adjustment.

            Querubin claims the district court erred by not granting

him a downward departure from his sentencing guideline range.                  A

sentencing    court’s    decision    not     to   depart     downward    is   not

reviewable on appeal unless the district court’s decision resulted

from a mistaken belief that it lacked the legal authority to


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depart.    United States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002).

The record discloses that the district court was aware of its

authority to depart and exercised its discretion in deciding not to

depart.    Therefore, this claim is not properly before us.

               Querubin claims the district court erred in calculating

his criminal history category because the district court assigned

him criminal history points for the commission of the crime while

on probation for a prior offense pursuant to USSG §§ 4A1.1(d),

4A1.2.    He claims this enhancement violated Booker because the

district court’s finding that he committed the offense while on

probation was a fact not found by the jury beyond a reasonable

doubt.

               In Almendarez-Torres v. United States, 523 U.S. 224

(1998), the Supreme Court held that “the government need not allege

in its indictment and need not prove beyond reasonable doubt that

a defendant had prior convictions for a district court to use those

convictions for purposes of enhancing a sentence.” See also United

States    v.    Cheek,    415   F.3d   349    (4th   Cir.    2005)      (noting    that

Almendarez-Torres         was   not    overruled     by    Booker).       In    United

States v. Washington, 404 F.3d 834, 842-43 (4th Cir. 2005), this

court, applying Shepard v. United States, 125 S. Ct. 1254 (2005),

held that relying on facts outside the indictment in order to

conclude a prior conviction for burglary was a crime of violence

that   enhanced     the    defendant’s       offense      level   was   plain     error


                                        - 5 -
warranting correction. Querubin’s case is distinguishable from the

facts in Washington because the district court’s assessment of

criminal   history    points   in   this    case   only   required   that   the

district court determine when Querubin committed the offenses

relative to the date of the instant offense and how long his

probation lasted.      The district court’s assessment of criminal

history points because Querubin was under a criminal justice

sentence when he committed the charged offenses was not improper.

See Shepard, 125 S. Ct. at 1263.

           Querubin     finally     claims    that    the    district   court

improperly sentenced him when it attributed a drug quantity to him

greater than that found by the jury. Querubin preserved this issue

for appeal by raising it in the district court.              In Booker, the

Supreme Court concluded that the mandatory manner in which the

federal sentencing guidelines required courts to impose sentencing

enhancements based on facts found by the judge by a preponderance

of the evidence violated the Sixth Amendment.             Booker, 125 S. Ct.

at 746, 750.    Here, the district court’s use of 993.6 grams of

methamphetamine and 28.1 grams of marijuana went beyond the jury’s

verdict because the jury found Querubin responsible for only 73.91

grams of methamphetamine. In light of Booker, we vacate Querubin’s

sentence and remand the case for resentencing.*                Although the


     *
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the

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sentencing guidelines are no longer mandatory, Booker makes clear

that a sentencing court must still “consult [the] Guidelines and

take them into account when sentencing.”          125 S. Ct. at 767.   On

remand, the district court should first determine the appropriate

sentencing range under the Guidelines, making all factual findings

appropriate for that determination.       See United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005) (applying Booker on plain error

review).   The court should consider this sentencing range along

with the other factors described in 18 U.S.C. § 3553(a) (2000), and

then impose a sentence.    Id.    If that sentence falls outside the

Guidelines range, the court should explain its reasons for the

departure as required by 18 U.S.C. § 3553(c)(2) (2000).          Id.   The

sentence must be “within the statutorily prescribed range and . . .

reasonable.”   Id. at 546-47.

           We affirm Querubin’s convictions. In light of Booker, we

vacate   Querubin’s   sentence   and   remand    for   resentencing.   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




time” of Querubin’s sentencing.

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