                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4223



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


TIMOTHY TYRONE GREEN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-04-111)


Submitted:   December 22, 2005            Decided:   January 24, 2006


Before NIEMEYER, LUTTIG, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Donald H. Howe, Sr., HOWE & WYNDHAM, L.L.P., Charleston, South
Carolina, for Appellant. Jonathan S. Gasser, Acting United States
Attorney, Alston C. Badger, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant Timothy Green appeals the sentence he received after

pleading guilty to selling crack cocaine.              For the reasons that

follow, we affirm.



                                      I.

     In the summer of 2002, a task force comprising federal and

state law enforcement officers initiated an investigation into a

drug trafficking ring of individuals living in Colleton County,

South Carolina. This investigation led law enforcement to conclude

that Timothy Green had been involved in selling drugs.

     In August of 2003, Ryan North, a co-defendant of Green,

volunteered to cooperate with law enforcement. During an interview

with law enforcement agents, North stated that in the past decade

he had purchased approximately one-half kilogram of crack and one-

half kilogram of cocaine from Green. Based on this information, on

August 29, 2003, law enforcement officers arranged for North to

make a controlled buy of fourteen grams of crack cocaine from

Green.

     On February 11, 2004, a federal grand jury returned a twelve-

count    indictment    charging     Green,    North,   and   four    other   co-

defendants with various drug offenses.               J.A. 14-20.     Count Ten

charged   that,   on   or   about    August    29,   2003,   Green   knowingly

possessed and distributed five grams or more of cocaine base in


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violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).*              Id. at 19.

On June 21, 2004, Green pled guilty to Count Ten.              Id. at 21-28.

      On October 20, 2004, a sentencing hearing took place before

the district court.       However, at the hearing the parties disputed

the extent of Green’s involvement with North, and they agreed to

continue the sentencing hearing until North could testify regarding

the nature of his relationship with Green.           Id. at 52.     On November

4,    2004,   North   testified     before    the   court   about    his     drug

transactions with Green.      He stated that between 2001 and 2003, he

had purchased drugs from Green “between six and ten” times.                Id. at

99.   He testified that he had never pre-arranged to buy drugs from

Green, but that Green regularly came into town to conduct drug

business on the weekends and North would try to catch him around

town on these occasions.       Id. at 98-99.        North testified that he

typically purchased either half an ounce or a full ounce of crack

from Green.    Id. at 101.

      On   February   3,    2005,    the    district   court    held    another

sentencing     hearing.      Based     on    North’s   testimony       and    the

recommendation of the probation officer, the district court decided

to attribute between 50 and 150 grams of crack cocaine to Green.

Id. at 124.      This resulted in Green being assigned an adjusted



      *
      Green was also charged in Count One with conspiracy to
possess with intent to distribute five kilograms or more of cocaine
and 50 grams or more of cocaine base. J.A. 14-15. This charge was
dropped when Green agreed to plead guilty to Count Ten.

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offense level of 29 instead of the offense level of 23 he would

have been assigned had the district court considered only the

fourteen grams involved in the sale to North to which Green pled

guilty.    With a criminal history category of II and an adjusted

offense level of 29, the Sentencing Guidelines prescribed a range

between 97 and 121 months.        The district court sentenced Green to

97 months.      Green filed a timely notice of appeal.



                                     II.

     Green challenges his sentence on two grounds.                First, he

argues that the district court violated his Sixth Amendment right

to a jury trial under United States v. Booker, 125 S. Ct. 738

(2005), by including in the calculation of his offense level the

amount of drugs involved in his uncharged transactions with North.

Second, he argues that even if there was no Sixth Amendment

violation, the district court erred in considering the uncharged

transactions because they do not constitute “relevant conduct”

within    the   meaning   of   section   1B1.3(a)(2)   of   the   Sentencing

Guidelines.     These arguments are without merit.

     The district court did not violate the Sixth Amendment by

considering the amount of drugs involved in Green’s uncharged

transactions with North.        Booker held only that uncharged facts

cannot be used “to support a sentence exceeding the [statutory]

maximum,” 125 S. Ct. at 756 (emphasis added), not, as Green


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suggests, that a sentencing judge may not use uncharged facts to

enhance   the   defendant’s      sentence   within   the     statutory    range.

Booker    obviously     contemplates     that     sentencing     judges     can,

consistent with the Sixth Amendment, rely on uncharged facts in

determining an appropriate sentence within the statutory range.

See id. at 750 (“[W]hen a trial judge exercises his discretion to

select a specific sentence within a defined range, the defendant

has no right to a jury determination of the facts that the judge

deems    relevant.”).      Now    that   the    Sentencing    Guidelines     are

advisory, the relevant range is no longer the Guidelines range, but

the range prescribed by statute.            Here, that range was five to

forty years.    See 21 U.S.C. § 841(b)(1)(B).          Because Green’s 97-

month sentence was within this statutory range, the district

court’s consideration of uncharged facts did not violate Green’s

Sixth Amendment right to trial by jury.

     Green’s claim that the uncharged transactions with North were

not “relevant conduct” is equally meritless.                 For purposes of

offenses, like Green’s, where the offense level is determined by

the amount of substance involved, “relevant conduct” is defined by

section 1B1.3(a)(2) of the Sentencing Guidelines to include acts

and omissions “that were part of the same course of conduct or

common scheme or plan as the offense of conviction.”                Here, the

offense of conviction was Green’s sale of fourteen grams of crack

cocaine to North.       The uncharged facts considered by the district


                                     -5-
court -- the series of drug transactions between Green and North

over the course of the previous two years -- were obviously part of

a common scheme to trade in illegal drugs.            Green argues that his

previous transactions with North were not part of a common scheme

because they did not occur at regular intervals and were not

planned ahead of time.        We reject this argument.         The fact that

Green had repeatedly sold crack to North in the past was clearly

“relevant conduct” in sentencing Green for his conviction for a

specific incident of selling crack to North.



                                CONCLUSION

     For the reasons stated herein, the judgment of the district

court 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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