                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4094



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


EDUARDO   CRISOSTOMO   FABIAN,   a/k/a   Eduardo
Ortiz,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-201)


Submitted:   November 8, 2006             Decided:   February 5, 2007


Before WILKINS, Chief Judge, WIDENER, Circuit Judge, and David A.
FABER, Chief United States District Judge for the Southern District
of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


J. Darren Byers, Winston-Salem, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, L. Patrick Auld,
Assistant United States Attorney, Deputy Chief, Criminal Division,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Eduardo     Crisostomo   Fabian       appeals      the    sentence      imposed

following his plea of guilty to distribution of methamphetamine.

See 21 U.S.C.A. § 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2006).

Finding no error, we affirm.

      In determining Fabian’s guideline range, the district court

set   Fabian’s    base   offense   level      at   32.         See   United    States

Sentencing Guidelines Manual § 2D1.1(a)(3), (c)(4) (2003).                         The

court then imposed a two-level enhancement because a dangerous

weapon was possessed, see U.S.S.G. § 2D1.1(b)(1), and a three-level

reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1,

for a total offense level of 31. Considered together with Fabian’s

Criminal History Category of II, this offense level yielded a

guideline     range   of    121-151   months       imprisonment.              On   the

Government’s recommendation, the district court imposed a sentence

of 90 months imprisonment--approximately 75 percent of the low end

of    Fabian’s    guideline    range--based        on    Fabian’s      substantial

assistance.      See 18 U.S.C.A. § 3553(e) (West Supp. 2006); U.S.S.G.

§ 5K1.1, p.s.

      Fabian argues on appeal that imposition of the two-level

enhancement for possession of a dangerous weapon violated his Sixth

Amendment rights.*       See United States v. Hughes, 401 F.3d 540, 546


       *
       Fabian was sentenced before the Supreme Court decided United
 States v. Booker, 543 U.S. 220 (2005), rendering the sentencing
 guidelines “effectively advisory.” Booker, 543 U.S. at 245.

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(4th Cir. 2005).    However, because Fabian’s sentence was less than

the high end of the guideline range that would have applied before

the   weapons    enhancement   was   imposed    and   the   acceptance   of

responsibility     reduction   was   granted,   Fabian’s    constitutional

rights were not violated.       See United States v. Evans, 416 F.3d

298, 300 & n.4 (4th Cir. 2005).

      For this reason, Fabian’s sentence is affirmed.         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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