                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4491



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LUIS SIERRA-GONZALEZ, a/k/a Jose Luis Sierra-
Gonzalez, a/k/a Luis Sierra Gonzalez, a/k/a
Abraham Morales Garcia, a/k/a Alraham Alfons
Garcia-Morales,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-46)


Submitted:   January 11, 2006             Decided:   February 7, 2006


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Luis Sierra-Gonzalez pled guilty to three counts of

possession of controlled substances with intent to distribute and

one count of conspiracy to possess with intent to distribute

cocaine, cocaine base, and methamphetamine.                      Following a jury

trial,   he    was        found   guilty    of     possession   of    a   firearm   in

furtherance of a drug trafficking crime and possession of a firearm

while being an alien illegally in the United States.

              At    sentencing,      the   district     court   overruled     Sierra-

Gonzalez’s objections to the increased penalty applicable due to

his prior drug conviction and the probation officer’s failure to

credit   him       with    the    three-level      reduction    for   acceptance    of

responsibility.           Because Sierra-Gonzalez had a prior felony drug

conviction, he was subject to the twenty-year mandatory minimum

sentence under 21 U.S.C. § 841(b)(1)(A) (2000). The district court

sentenced him to 240 months on the controlled substance offenses

and the related firearm charge and a consecutive 60-month term for

possession of a firearm by an illegal alien.

              Sierra-Gonzalez first contends that the district court

erred in denying his motion for judgment of acquittal on the

firearm charges.           We find that the evidence that Sierra-Gonzalez

traded drugs for the firearm was sufficient to constitute “use” of

a firearm in relation to a drug trafficking offense.                      See Smith v.




                                           - 2 -
United States, 508 U.S. 223, 241 (1993); United States v. Garnett,

243 F.3d 824, 829 (4th Cir. 2001).

           To the extent that there was a variance between the

indictment, which charged the using and carrying of a firearm “on

or about August 21, 2003,” and the evidence, which proved only that

the exchange of drugs for the firearm occurred some time during

August 2003, we find this to be a minor variance.             “‘Where a

particular date is not a substantive element of the crime charged,

strict chronological specificity or accuracy is not required.’”

United States v. Kimberlin, 18 F.3d 1156, 1158-59 (4th Cir. 1994)

(quoting United States v. Morris, 700 F.2d 427, 429 (1st Cir.

1983)).

           Moreover, notwithstanding the transfer of drugs for the

firearm, we find that there was sufficient other evidence, viewed

in the light most favorable to the Government, that Sierra-Gonzalez

used or carried the firearm in relation to his sales of drugs.

See Glasser v. United States, 315 U.S. 60, 80 (1942).           Sierra-

Gonzalez kept the firearm in the same place he stored his drugs and

from which he sold the drugs.     Also, he stated that he wanted a gun

with a silencer and that he planned to kill an individual who had

stolen drugs from him.     Because we agree that there was sufficient

evidence   to   support   Sierra-Gonzalez’s   firearm   convictions,   we

affirm the district court’s denial of his motion for judgment of

acquittal.


                                  - 3 -
            Sierra-Gonzalez next argues that his Sixth Amendment

rights   were    violated   when   the   sentencing     court   enhanced   his

sentence based on a prior conviction, which was not alleged in the

indictment or submitted to a jury.          This argument is foreclosed by

United States v. Booker, 543 U.S. 220,                , 125 S. Ct. 738, 756

(2005) (“[W]e reaffirm our holding in Apprendi[ v. New Jersey, 530

U.S. 466, 490 (2000)]: Any fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.”); see Almendarez-Torres v. United

States, 523 U.S. 224, 233-36 (1998).

            The final issue asserted by Sierra-Gonzalez is whether

the district court erred in not reducing his offense level for

acceptance      of   responsibility.        Because    Sierra-Gonzalez     was

sentenced pursuant to the statutory mandatory minimum sentence,

resolution of this issue does not affect his sentence.                In any

event, we find that the district court properly declined to reduce

Sierra-Gonzalez’s offense level for acceptance of responsibility

because he failed to accept responsibility for “all of his criminal

conduct.”    United States v. Gordon, 895 F.2d 932, 936 (4th Cir.

1990) (“[I]n order for section 3E1.1 of the guidelines to apply, a

defendant must first accept responsibility for all of his criminal

conduct.”); see United States v. May, 359 F.3d 683, 694 (4th Cir.


                                    - 4 -
2004).   Although Sierra-Gonzalez admitted his involvement in the

drug charges, he pled “not guilty” and went to trial on the firearm

offenses.

            In conclusion, we affirm Sierra-Gonzalez’s convictions

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




                               - 5 -
