                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4380



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROBERT LEE CYRUS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (4:03-cv-00055-CWH)


Submitted: May 16, 2007                        Decided:   July 6, 2007


Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


D. Craig Brown, Florence, South Carolina, for Appellant. Alfred
William Walker Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Robert Lee Cyrus appeals his sentence following remand of

235 months of imprisonment and five years of supervised release

imposed after he pleaded guilty to one count of conspiracy to

possess with intent to distribute fifty grams or more of cocaine

base, in violation of 21 U.S.C. § 846 (2000).1              Counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that there are no meritorious issues for appeal, but

questioning whether the district court complied with the order of

this court when it imposed essentially the same sentence initially

imposed upon Cyrus.2        Specifically, he challenges the district

court’s   three-level      enhancement     of    his    sentence       under    U.S.

Sentencing Guidelines Manual (“USSG”) § 3A1.2(b)(1) (2004), for

“official victim” based on judicially determined facts found by a

preponderance   of   the    evidence     and    not    admitted   to    by     Cyrus,

claiming the enhancement violates his Sixth Amendment rights.                     In

addition to this issue, Cyrus, pro se, claims error in the district

court’s   conclusion    that   he   is   not    entitled    to    a    three-level




     1
      We previously affirmed Cyrus’ conviction, but vacated his
sentence, and remanded for resentencing in accordance with United
States v. Booker, 543 U.S. 220 (2005).
     2
      The district court originally sentenced Cyrus under the then-
mandatory   federal   sentencing    guidelines   to   235   months’
imprisonment, five years of supervised release, and ordered payment
of $5434.21 restitution.

                                    - 2 -
reduction pursuant to USSG § 5C1.2, and further asserts that his

sentence is unreasonable.          We affirm.

            Contrary    to   Cyrus’      assertion      regarding    the    district

court’s enhancement of his sentence, Booker did “not in the end

move any decision from judge to jury, or change the burden of

persuasion.”      United States v. Morris, 429 F.3d 65, 72 (4th Cir.

2005),    cert.   denied,    127    S.    Ct.    121   (2006).      In   sentencing

defendants after Booker, district courts continue to make findings

necessary for enhancement, applying a preponderance of the evidence

standard, while taking into account that the resulting Guidelines

range is advisory only.       Id.    The sentencing court is authorized to

make factual findings in order to determine appropriately the

defendant’s advisory range under the guidelines. See United States

v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).                           Here, the

district court found that the blue lights that were flashing on the

police cars Cyrus drove into while attempting to evade arrest was

sufficient to identify them as official vehicles, thus supporting

the   §   3A1.2(b)(1)    enhancement.            We    find   no   error    in   this

determination.      Thus, Cyrus’ challenge to the district court’s

enhancement based on facts found by the judge by a preponderance of

the evidence is without merit.

            Cyrus next challenges the district court’s determination

that Cyrus does not qualify for the safety valve provision of USSG

§ 5C1.2.    A defendant who meets all five criteria set out in USSG


                                         - 3 -
§   5C1.2   (incorporating    §§    3553(f)(1)-(5))    is    eligible       for   a

sentence below the mandatory minimum.              The second of the five

factors requires that a defendant did not use violence or credible

threats of violence or possess a firearm or other dangerous weapon

in connection with the offense.          USSG § 5C1.2(2).    The fifth factor

requires that the defendant truthfully provide to the Government

all information and evidence the defendant has concerning the

offense or offenses that were part of the same course of conduct or

of a common scheme or plan.         USSG § 5C1.2(5).

            During resentencing, Cyrus’ counsel contended that Cyrus

provided information that led to the arrest of his co-defendant,

which in turn led to the arrest of a counterfeiter.               The Government

countered    that   Cyrus   did    not   qualify   under    the    safety   valve

provisions both because he “rammed the police car with his car,”

asserting that that action constituted not only a credible threat

of violence, but actual violence, and because Cyrus failed to

provide the Government with all the available information he had

with regard to what he was going to do with the three kilos of

crack cocaine or about his prior drug involvement, and Cyrus was

untruthful to the Government, as demonstrated by the fact he

provided false information to the Government and failed a polygraph

test.

            The district court denied application of the safety valve

provision to Cyrus on the basis of factor two, as supported by


                                     - 4 -
Cyrus’ threat voiced on the audiotape that he would “lay [the drug

dealers] down right there” if they discovered that he was using

counterfeit money.    In so doing, the district court relied on

United States v. Spring,3 305 F.3d 276 (4th Cir. 2002), for the

proposition that a threat need not be communicated to the person to

whom it is directed to disqualify a defendant from application of

the safety valve provision.   In Spring, this court held that the

defendant’s statements about his desire to hurt his probation

officer constituted “threats” that warranted an increase under the

Sentencing Guidelines even though the defendant did not communicate

such threats or intend to communicate the threats directly to the

probation officer.   305 F.3d at 281.   The enhancement at issue in

Spring was a two-level increase pursuant to USSG § 2A6.1(b)(2), to

be applied for making more than two threats.

          In support of his claim on appeal, Cyrus directs his

argument only to the second criterion, contending that he did not

make a threat that was credible; that the threat was made eight

days prior to the offense, thus demonstrating that it was not

connected to his offense; that the district court’s reliance on

United States v. Spring was misplaced because he made only one

threat rather than two threats; and that the fact he had no

dangerous weapon on his person or in his car when he was arrested



     3
      The case is incorrectly cited in the transcript as “United
States v. String.”

                               - 5 -
supports the conclusion that the threat was not credible.                 He does

not dispute, nor even reference, the fact that he failed to

disclose to the Government what he intended to do with the three

kilos of crack cocaine, or what his prior involvement in drug

dealing had been, and failed even to mention the failed polygraph

test.

              We find Cyrus’ challenge to the district court’s reliance

on Spring to be misplaced.          While Cyrus correctly noted that the

enhancement affirmed in Spring related to a guideline enhancement

other than the safety valve provision, the logic supporting the

affirmance is the same.        As this court noted in Spring, cases and

statutes interpreting the definition of the word “threat” have

uniformly held that communication to the intended victim is not

necessary to support the crime or an enhancement based on the

threat, unless communication is an essential element of the crime.

Spring, 305 F.3d at 280-81 (citing United States v. Patillo, 431

F.2d 293, 295-96 (4th Cir. 1970) (holding that statements to co-

worker expressing desire to kill President constituted true threats

for purposes of 18 U.S.C. § 871 (2000)), aff’d on reh’g en banc,

438 F.2d 13 (4th Cir. 1971); United States v. Siegler, 272 F.3d

975,    978   (7th   Cir.   2001)   (upholding   18   U.S.C.    §   876   (2000)

conviction based on letter to defendant’s associate instructing him

to   murder    prosecution    witness)).     Hence,    the     district    court

properly denied Cyrus the benefit of the safety valve reduction


                                     - 6 -
even though Cyrus’ threat was not communicated to his probation

officer. Moreover, aside from the threat Cyrus made concerning his

probation officer, there was ample additional evidence before the

district court that would otherwise disqualify Cyrus from the

benefit of the safety valve provision of § 5C1.2.

          Cyrus next contends that his sentence was unreasonable.

After Booker, courts must calculate the appropriate guideline

range, making any appropriate factual findings.       United States v.

Davenport, 445 F.3d 366, 370 (4th Cir. 2006).           The court then

should   consider   the   resulting   advisory    guideline   range   in

conjunction with the factors under 18 U.S.C.A. § 3553(a) (West 2000

& Supp. 2006), and determine an appropriate sentence that is

“sufficient but not greater than necessary,” to achieve the goals

of § 3553(a).   Davenport, 445 F.3d at 370.      We will affirm a post-

Booker sentence if it “is within the statutorily prescribed range

and reasonable.” United States v. Moreland, 437 F.3d 424, 433 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006).        We have repeatedly

held that “[A] sentence within the proper advisory Guidelines range

is presumptively reasonable.”    United States v. Johnson, 445 F.3d

339, 341 (4th Cir. 2006); see also United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006), petition for cert. filed, __

U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439); United States v.

Johnson, 445 F.3d 339, 341-42 (4th Cir. 2006); United States v.




                                - 7 -
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309

(2006).

          Here,    the    district    court   appropriately   treated   the

guidelines as advisory, and sentenced Cyrus within that range. The

issues Cyrus raises to support his claim that his sentence is

unreasonable, i.e., that he is a first-time offender, that the

offense was not a continuing criminal conspiracy, that he has

strong family ties, and that he cooperated with law enforcement

authorities upon his arrest, all were raised at sentencing and

considered by the district court.             The final issue, that he

contracted rheumatic fever while being housed at Lexington Federal

Medical Center, was not raised in the district court at sentencing,

thus there was no error in the district court’s failure to consider

this claim in determining Cyrus’ sentence.         Neither Cyrus nor the

record suggest any information so compelling as to rebut the

presumption that a sentence within a properly calculated guideline

is reasonable.    We find no error in the calculation of the advisory

guideline range.4        Given this, and Cyrus’ failure to provide


     4
      At resentencing, the district court specifically referred to
Booker, to the advisory nature of the guidelines, and to the
§ 3553(a) factors, stating that it specifically considered those
factors.   It adopted some and rejected other findings in the
presentence report, and in addition to the § 3553(a) factors, the
court considered the guidelines range and other relevant guideline
factors.    The court was familiar with Cyrus’ history and
background, having presided over his trial. Also, the court had
sentenced Cyrus originally and was familiar with the details of his
case from the initial sentencing hearing.       Cyrus’ presentence
report outlined his offense conduct and his criminal history.

                                     - 8 -
evidence to overcome the presumption of reasonableness we accord

such a sentence, we reject Cyrus’ claim of unreasonableness.

           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   We therefore affirm Cyrus’ 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




Finally, Cyrus took the opportunity to argue at length about the
strength of the evidence against him during the resentencing
hearing, providing additional information about the § 3553(a)
factors prior to the district court’s imposition of sentence.

                               - 9 -
