                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4538



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


THURMAN MOBLEY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:99-cr-00165-8)


Submitted:   April 8, 2008                  Decided:   April 22, 2008


Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mekka Jeffers-Nelson, LAW OFFICE OF MEKKA JEFFERS-NELSON,
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Unpublished opinions are not binding precedent in this circuit.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:

          After a jury trial, Thurman Mobley was convicted of

conspiracy to possess with intent to distribute and to distribute

cocaine base (crack), and conspiracy to use, carry, and possess

firearms during and in relation to a drug trafficking offense.   On

a special verdict form, the jury found that the drug conspiracy

involved “at least 5 grams but less than 50 grams of cocaine base.”

The district court found that Mobley was responsible for between 35

and 50 grams of cocaine base and originally sentenced him to 170

months in prison.   This court affirmed Mobley’s conviction, but

vacated his sentence and remanded for resentencing in accordance

with United States v. Booker, 543 U.S. 220 (2005).

          On remand, the district court conducted a resentencing

hearing and again determined that Mobley was responsible for 35 to

50 grams of cocaine base.   After considering the factors set forth

in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), the district

court sentenced Mobley to 160 months, noting that the lesser

sentence imposed on remand was due to Mobley’s successful record in

prison and the evidence presented concerning his ability to be a

productive citizen upon his release from prison.

          Mobley again appeals, claiming that the district court

violated his Fifth and Sixth Amendment rights by enhancing his

sentence based on findings made by the court, rather than a jury.

Mobley’s claim is foreclosed by Booker and its progeny.      After


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Booker, a district court is no longer bound by the range prescribed

by the sentencing guidelines.              United States v. Hughes, 401 F.3d

540, 546 (4th Cir. 2005). However, courts still must calculate the

applicable guideline range after making the appropriate findings of

fact and consider the range in conjunction with other relevant

factors under the guidelines and § 3553(a). Gall v. United States,

128 S. Ct. 586, 597-98 (2007).             We will review the sentence under

an abuse of discretion standard regardless of whether the sentence

imposed is inside or outside of the guideline range.                     Id.

            Under an advisory guidelines scheme, a district court

does not violate the Fifth or Sixth Amendment by making factual

findings    as   to     sentencing    factors      by   a   preponderance       of   the

evidence as long as the fact-finding does not enhance the sentence

beyond the maximum term specified in the substantive statute.                        See

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding

that “Booker does not in the end move any decision from judge to

jury, or change the burden of persuasion”), cert. denied, 127 S.

Ct. 121 (2006).         Thus, we find no error by the district court in

determining the amount of drugs for which Mobley was responsible

within     the    broad        quantity    range    specified       by   the      jury.

Additionally, we find no error by the district court in adopting

the presentence report’s findings as to drug quantity where Mobley

failed     to    make     an    affirmative       showing    that    the       quantity

determination in the presentence report was wrong.                       See United


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States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (holding that,

where defendant failed to present evidence to contradict findings

in presentence report, the district court could adopt such findings

without further inquiry or explanation) (citations omitted).

           In   conclusion,    Mobley’s      claims    are   without     merit.

Moreover, we find that the sentence imposed was reasonable.                  The

district court correctly calculated the applicable guideline range,

treated the guidelines as advisory, and considered the § 3553(a)

factors.   Although the district court did not explicitly cite to

§ 3553(a), it was not required to do so.              See United States v.

Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (holding that district

court   “need   not   robotically     tick   through    §    3553(a)’s    every

subsection”).    The 160-month sentence imposed was in the middle of

the   applicable    advisory   guideline     range    and    well    below   the

statutory maximum sentence of life imprisonment.             See 21 U.S.C.A.

§ 841(b)(1)(B).       We find that the sentence is reasonable.               See

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) (“A

sentence   within     the   proper    Sentencing      Guidelines     range   is

presumptively reasonable.”); see Rita v. United States, 127 S. Ct.

2456, 2462-69 (2007) (upholding presumption of reasonableness for

within-guidelines sentence).

           Accordingly, we affirm Mobley’s sentence.                We dispense

with oral argument because the facts and legal contentions are




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adequately addressed in the materials before the court and argument

would not aid the decisional process.



                                                          AFFIRMED




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