                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4676



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JAMES MATTHEW QUATTLEBAUM,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District Judge.
(3:05-cr-00760-MBS)


Submitted:   June 3, 2008                     Decided:   July 2, 2008


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. Michael Duncan, AUSTIN & ROGERS, P.A., Columbia, South Carolina,
for Appellant. Kevin F. McDonald, Acting United States Attorney,
Stanley D. Ragsdale, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  James Matthew Quattlebaum pleaded guilty, pursuant to a

plea       agreement,     to   conspiracy     to    manufacture   and    distribute

methamphetamine and cocaine, in violation of 21 U.S.C. § 846

(2000), and was sentenced to 262 months’ imprisonment. Quattlebaum

appeals, arguing that the court erred by enhancing his sentence

based on endangerment to a minor and by denying his motion for a

below-guidelines variance sentence.

                  First, Quattlebaum argues that the district court erred

in applying a six-level child endangerment enhancement under U.S.

Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(6)(C) (2005) (now

§ 2D1.1(b)(8)(c)), because Quattlebaum did not actually manufacture

methamphetamine in the presence of minors. He also points out that

the enhancement added over ten years to his minimum Guidelines

sentence, exceeding the ten-year maximum penalty to which he would

have       been    subject     if   convicted      of   endangerment   through   the

manufacture of methamphetamine under 21 U.S.C. § 858 (2000).1

Therefore,         he   contends    that   his     sentence   violates   his   Sixth

Amendment rights under United States v. Booker, 543 U.S. 220

(2005).




       1
      The Government dismissed a charge of creating a risk to human
life through the manufacture of methamphetamine in exchange for
Quattlebaum’s guilty plea to the conspiracy charge.             The
endangerment charge carried a maximum statutory penalty of ten
years. 21 U.S.C. § 858 (2000).

                                           - 2 -
           In the plea agreement, however, Quattlebaum stipulated to

the   application   of   the   endangerment   enhancement.   The   court

reviewed, and Quattlebaum confirmed, that stipulation during the

plea hearing.   Moreover, no Sixth Amendment error occurred because

Quattlebaum’s sentence does not exceed the statutory maximum for

the crime of which he was convicted.           Pursuant to 21 U.S.C.A.

§ 841(b)(1)(A) (West 1999 & Supp. 2008), Quattlebaum faced a

maximum life sentence on the conspiracy charge and a mandatory

minimum sentence of ten years.2

           Next, Quattlebaum asserts that the district court erred

in denying him a sentencing variance. Following Booker, a district

court must engage in a multi-step process at sentencing. First, it

must calculate the appropriate advisory Guidelines range.       It must

then consider the resulting range in conjunction with the factors

set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008), and

determine an appropriate sentence. United States v. Davenport, 445

F.3d 366, 370 (4th Cir. 2006).

           Appellate review of a district court’s imposition of a

sentence is for abuse of discretion.       Gall v. United States, 128 S.

Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007).       The appellate court must first ensure

that the district court committed no procedural error, such as


      2
      The conspiracy statute, 21 U.S.C. § 846, provides that the
penalties shall be “the same penalties as those prescribed for the
[underlying] offense.”

                                   - 3 -
“failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence--including an explanation for any deviation from the

Guidelines range.”       Gall, 128 S. Ct. at 597.         If there are no

procedural   errors,     the   appellate   court   then     considers   the

substantive reasonableness of the sentence.               Id. “Substantive

reasonableness review entails taking into account the totality of

the circumstances, including the extent of any variance from the

Guidelines range.”       Pauley, 511 F.3d at 473 (internal quotation

marks omitted).

           Here,   the     district   court    followed     the   necessary

procedural steps in sentencing Quattlebaum, properly calculating

the   Guidelines   range   and   considering   that   recommendation     in

conjunction with the § 3553(a) factors. While Quattlebaum contends

that the court erred in denying his motion for a variance sentence

based on the onerous conditions of local custody, no comparative

evidence corroborated his assertion that his pretrial confinement

was atypically harsh.       The district court granted Quattlebaum’s

request for credit for the time spent in local custody, but




                                  - 4 -
concluded a downward variance was not “appropriate” and imposed the

minimum sentence within the Guidelines range.3

          The district court considered and rejected Quattlebaum’s

arguments in support of a variance and based its sentence on the

Guidelines range and the § 3553(a) factors.   We conclude the court

did not err in denying the variance motion.   Nothing in the record

rebuts the presumption that the sentence, within the properly

calculated Guidelines range, is reasonable.   United States v. Go,

517 F.3d 216, 218 (4th Cir. 2008) (“If the sentence is within the

Guidelines range, we apply a presumption of reasonableness.”); see

Rita v. United States, 127 S. Ct. 2456, 2462-68 (2007) (holding

court of appeals may apply such a presumption of reasonableness).

Accordingly, we affirm Quattlebaum’s conviction and 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




     3
      Quattlebaum   points   to  several   decisions   from   other
jurisdictions holding that extremely harsh conditions of pretrial
confinement may be a mitigating circumstance justifying the
imposition of a below-guidelines sentence.       See, e.g., United
States v. Carty, 264 F.3d 191, 196 (2d Cir. 2001) (per curiam).
Nothing in the decisions cited by Quattlebaum leads to the
conclusion that the district court abused its discretion in denying
Quattlebaum’s motion for a variance in this case.

                              - 5 -
