                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-5131


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

GODWIN ASIFO,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:09-cr-00032-CMH-1)


Submitted:   August 31, 2011                 Decided:   September 6, 2011


Before KING, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert L. Flax, Richmond, Virginia, for Appellant.   Neil H.
MacBride, United States Attorney, Jack Hanly, Marla Tusk,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Following a jury trial, Godwin Asifo was convicted of

two counts of mail fraud and one count of wire fraud.                                  The

Government moved to dismiss two additional counts of mail fraud

before the jury resolved them.                  The district court sentenced

Asifo to fifty-seven months’ imprisonment, the bottom of the

Guidelines     range.      Asifo    appeals      his       sentence.         Finding    no

error, we affirm.

             This court reviews Asifo’s sentence for reasonableness

under    a   deferential    abuse   of    discretion             standard.      Gall    v.

United States, 552 U.S. 38, 46 (2007).                      Our review requires a

consideration         of   both     the       procedural            and      substantive

reasonableness of a sentence.             Id.        We afford within-Guidelines

sentences a presumption of reasonableness.                       See United States v.

Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir. 2010).

             First,    Asifo   argues     that       he    was    impermissibly      held

accountable for a loss amount that was not submitted to the jury

and included acquitted conduct.               He relies on United States v.

O’Brien, 130 S. Ct. 2169, 2174-75 (2010), and Apprendi v. New

Jersey, 530 U.S. 466, 499 (2000).                     This argument is without

merit.        “Sentencing      judges     may        find        facts    relevant      to

determining     a     Guidelines    range       by     a    preponderance       of     the

evidence, so long as that Guidelines sentence is treated as

advisory and falls within the statutory maximum authorized by

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the jury’s verdict.”            United States v. Benkahla, 530 F.3d 300,

312   (4th Cir. 2008).           Here,     the     jury    verdict       authorized        a

sentence   up   to      twenty    years’       imprisonment.         See       18    U.S.C.

§§ 1341,   1343     (West      Supp.     2011).        Asifo’s     fifty-seven-month

sentence was well within the authorized range.

            Next, Asifo asserts that the district court erred when

it considered the conduct charged in the dismissed counts in

determining     the     loss    amount    and     in    applying     a   role       in    the

offense    enhancement.           However,        the     evidence       was    relevant

conduct, and the district court was permitted to consider it.

See United States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).

Accordingly,      the     district       court     did     not     clearly          err   in

calculating Asifo’s total offense level.                    See United States v.

Mehta,    594   F.3d     277,    281     (4th     Cir.)    (stating       standard        of

review), cert. denied, 121 S. Ct. 279 (2010).

            Asifo       also     contends         that     the      district          court

“unreasonably denied a downward deviation.”                      He argues that the

district court should have granted a downward departure: (1)

pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 5K2.20

(2008), because his offense was aberrant behavior; (2) pursuant

to USSG § 5H1.4 because of his poor health; and (3) because he

has exhibited post-conviction rehabilitation.                      This court lacks

authority to review a sentencing court’s decision not to depart

downward “unless the court failed to understand its authority to

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do     so.”       United       States      v.       Brewer,     520    F.3d      367,     371

(4th Cir. 2008).           Asifo     has     not     alleged     the     district       court

failed to understand its authority, and nothing in the record

would     support       such    a    conclusion.              Consequently,        Asifo’s

contention that the district court should have departed pursuant

to USSG §§       5H1.4 and 5K2.20 may not be considered on appeal.

               Finally,    Asifo         asserts      that    this     case     should     be

remanded for resentencing in light of Pepper v. United States,

131 S. Ct. 1229 (2011), for the district court to consider his

post-conviction         rehabilitation.               However,        Asifo’s     reliance

Pepper    is     misplaced.          In     any      event,     the     district        court

considered Asifo’s declarations of remorse, and we conclude that

they    are    insufficient         to    render      his     sentence    substantively

unreasonable.

               Based on the foregoing, we affirm the judgment of the

district court.           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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