                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4029



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


WALTER GARCIA-ARZATE, a/k/a Aramando Millan
Madrigal,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-05-123)


Submitted:   August 30, 2006            Decided:   September 14, 2006


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


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant.   Anna Mills Wagoner, United States Attorney, Randall
Stuart Galyon, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Walter    Garcia-Arzate   pled       guilty   to   conspiracy    to

distribute    cocaine   hydrochloride,    in    violation    of   21   U.S.C.

§§ 841(a)(1), 846 (2000).       He was sentenced to 156 months of

imprisonment. Garcia-Arzate’s attorney on appeal has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

in his opinion there are no meritorious issues for appeal, but

raising as potential issues whether the district court erred in

failing to grant Garcia-Arzate a mitigating role adjustment and

whether the sentence imposed was reasonable.            Garcia-Arzate filed

a pro se supplemental brief challenging the drug amount attributed

to him.   Finding no reversible error, we affirm.

           Garcia-Arzate’s counsel first questions whether Garcia-

Arzate should have received a reduction for his mitigating role in

the offense pursuant to U.S. Sentencing Guidelines § 3B1.2 (2004).

A defendant has the burden of showing by a preponderance of the

evidence that he had a mitigating role in the offense.                 United

States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999).            A defendant

may receive a four-level reduction for being a minimal participant

if he is “plainly among the least culpable of those involved in the

conduct of a group.”      USSG § 3B1.2, cmt. (n.4).          This level of

culpability is shown by “the defendant’s lack of knowledge or

understanding of the scope and structure of the enterprise and of

the activities of others . . . .”        Id.    A two-level reduction may


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be made when a defendant is a minor participant, that is, one “who

is less culpable than most other participants, but whose role could

not be described as minimal.”            USSG § 3B1.2, cmt. (n.5).             In

deciding whether the defendant played a minor or minimal role, the

“critical inquiry is not just whether the defendant has done fewer

‘bad acts’ than his co-defendants, but whether the defendant’s

conduct is material or essential to committing the offense.”

United States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (internal

quotations and citations omitted). Role adjustments are determined

on the basis of the defendant’s relevant conduct. United States v.

Fells, 920 F.2d 1179, 1183-84 (4th Cir. 1990).                   The district

court’s   determination     concerning      the   defendant’s    role   in    the

offense is a factual issue reviewed for clear error.                        United

States v. Love, 134 F.3d 595, 606 (4th Cir. 1998).                      We have

reviewed the record and find the district court did not clearly err

in denying Garcia-Arzate a mitigating role adjustment.

              Garcia-Arzate’s   counsel       next   questions    whether     the

sentence under the advisory guidelines was unreasonable. After the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005),   a    sentencing   court   is   no    longer   bound    by   the   range

prescribed by the sentencing guidelines.                See United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005) (noting after Booker,

sentencing courts should determine the sentencing range under the

guidelines, consider the other factors under § 3553(a), and impose


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a reasonable sentence within the statutory maximum).              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. § 3553(a)

(2000). Id.    We will affirm a post-Booker sentence if it is both

reasonable and within the statutorily prescribed range.               Id. at

546-47.     We have further stated that “while we believe that the

appropriate circumstances for imposing a sentence outside the

guideline range will depend on the facts of individual cases, we

have no reason to doubt that most sentences will continue to fall

within the applicable guideline range.”          United States v. White,

405 F.3d 208, 219 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

Indeed,   “a   sentence    imposed    ‘within   the    properly   calculated

Guidelines range . . . is presumptively reasonable.’”                  United

States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (citing United

States v. Newsom, 428 F.3d 685, 687 (7th Cir. 2005), cert. denied,

126 S. Ct. 1455 (2006)).

            We find that the district court properly calculated the

guideline    range   and   appropriately     treated    the   guidelines   as

advisory. The court sentenced Garcia-Arzate only after considering

and examining the factors set forth in § 3553(a).             Based on these

factors, and because the court sentenced Garcia-Arzate within the

applicable guideline range and the statutory maximum, we find that




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Garcia-Arzate’s    sentence    of      156   months    of   imprisonment    is

reasonable.

            We find the issue raised in Garcia-Arzate’s pro se

supplemental brief challenging the drug quantity attributed to him

to be without merit because he agreed to the drug quantity as part

of his plea agreement.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We   therefore    affirm    Garcia-Arzate’s      conviction    and

sentence.   This court requires that counsel inform his client, in

writing, of his right to petition the Supreme Court of the United

States for further review.      If the client requests that a petition

be filed, but counsel believes that such a petition would be

frivolous, then counsel may move in this court for leave to

withdraw from representation.       Counsel’s motion must state that a

copy thereof was served on the client.                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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