                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4186


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT LEE CHILDERS,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:07-cr-00017-IMK-1)


Submitted:   February 18, 2010            Decided:   March 15, 2010


Before MOTZ, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant.      Sharon L. Potter, United States
Attorney, Zelda E. Wesley, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Robert      Lee    Childers    pled       guilty        to    distribution      of

crack     cocaine,        in     violation       of        21   U.S.C.       §§    841(a)(1),

841(b)(1)(C)        (2006),        and     was        sentenced        to      135      months’

imprisonment.             On    appeal,     he    raises         an        as-applied    Sixth

Amendment challenge to his sentence, arguing that his sentence

would not be “reasonable” under 18 U.S.C. § 3553(a) (2006) if

not for the judicially-found facts that substantially increased

his   guidelines       range.        Finding       no       constitutional         error,     we

affirm.

              Although the count in the indictment to which Childers

pled guilty charged him with distribution of approximately .23

grams of crack cocaine, at sentencing, the district court found

Childers responsible under relevant conduct for a “high low of

184.94 to 260.77 [grams of cocaine base].”                             Childers’ ultimate

advisory guidelines range based in part on this finding was 121

to 151 months’ imprisonment.                The district court concluded that

135 months was a reasonable sentence in Childers’ case.

              On    appeal,       Childers        raises         an    as-applied        Sixth

Amendment challenge to his sentence, arguing that his sentence

would   not    be   “reasonable”          under       18    U.S.C.     § 3553(a)        in   the

absence of the district court’s factual determination as to the

amount of drugs attributable to him.                            After United States v.

Booker,    543     U.S.    220    (2005),    the       sentencing          court     still   may

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engage in fact-finding necessary to a correct calculation of the

applicable guidelines.             See United States v. Battle, 499 F.3d

315, 322-23 (4th Cir. 2007).                  Nonetheless, Childers argues that,

in his case, a constitutional violation occurred because the

district court’s decision significantly increased his guideline

range.

              Childers      bases         his      argument     on    Justice       Scalia’s

concurring       opinion     in   Rita        v.    United    States,       551     U.S.      338

(2007), in which Justice Scalia stated, “there will inevitably

be some constitutional violations under a system of substantive

reasonableness [appellate] review, because there will be some

sentences that will be upheld as reasonable only because of the

existence      of    judge-found          facts.”       Id.     at    374    (Scalia,         J.,

concurring in part and concurring in the judgment) (emphasis in

original).          Childers argues that, because a judge-found fact

(the amount of drugs attributed to him) was necessary to achieve

a   correct    calculation        of      the      guidelines      range    and     a    lawful

sentence    and      that   the   fact        determined      by     the    court       had   the

effect    of     increasing       his      sentence      significantly,           his     Sixth

Amendment right to a jury trial was violated.

              A district court violates the Sixth Amendment when it

applies    the      guidelines       as    mandatory      and      imposes     a    sentence

greater than the maximum allowed by the jury’s verdict.                                       See

United    States      v.    Perry,      560     F.3d   246,     258    (4th    Cir.       2009)

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(holding that, after Booker, district courts may “continue to

make    factual       findings     concerning       sentencing     factors    by    a

preponderance of the evidence,” including relying on acquitted

conduct); United States v. Webb, 545 F.3d 673, 677 (8th Cir.

2008) (finding that, as long as the sentence imposed does not

exceed the statutory maximum authorized by the jury’s verdict,

the    district   court    does        not   violate   the   Sixth   Amendment     by

imposing a sentence based on a higher drug quantity than was

determined by the jury).

            In United States v. Benkahla, 530 F.3d 300, 312 (4th

Cir. 2008), we specifically rejected the Sixth Amendment as-

applied argument, finding it “too creative for the law as it

stands.”     We reiterated that “[s]entencing judges may find facts

relevant to determining a Guidelines range by a preponderance of

the evidence, so long as that Guidelines sentence is treated as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.”             Id.     As we noted, “[t]he point is thus

that the Guidelines must be advisory, not that judges may find

no facts.”     Id.; see also United States v. Ashqar, 582 F.3d 819,

825 (7th Cir. 2009) (“While [the as-applied Sixth Amendment]

argument is not without its advocates, it is not the law.”)

(internal citations omitted); United States v. Setser, 568 F.3d

482, 498 (5th Cir. 2009) (rejecting as-applied Sixth Amendment

challenge    to   a    higher     sentence       within   the   statutory    maximum

                                             4
based on judicially-found facts); United States v. White, 551

F.3d 381, 384 (6th Cir. 2008) (en banc) (“In the post-Booker

world,     the    relevant      statutory          ceiling     is        no   longer      the

Guidelines       range   but   the    maximum        penalty      authorized         by   the

United States Code.”); United States v. Redcorn, 528 F.3d 727,

745-46 (10th Cir. 2008) (rejecting as-applied Sixth Amendment

challenge to judicially-found facts).

            Here,    Childers        pled    guilty     to    distribution           of    .28

grams of cocaine base.           The maximum sentence allowed under the

statute based on his plea is twenty years’ imprisonment.                             See 21

U.S.C. § 841(b)(1)(C).            The sentencing court determined by a

preponderance of the evidence that Childers was responsible for

between “184.94 to 260.77 [grams of cocaine base].”                               The 135-

month    sentence    imposed     by    the       district    court,       based   on      this

finding    and    after     treating    the        guidelines       as    advisory,       was

within the maximum authorized sentence.                     Therefore, we find that

Childers’ sentence does not violate the Sixth Amendment.

            Accordingly,        we     affirm        Childers’       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



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