                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4887


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

AL ANTONIO BELLAMY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:05-cr-00009-RLV-DCK-9)


Submitted:    November 30, 2009            Decided:   December 15, 2009


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard E. Beam, Jr., HUBBARD & BEAM, Gastonia, North Carolina,
for Appellant.   Edward R. Ryan, Acting 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Al        Antonio     Bellamy     pled       guilty,         without      a      plea

agreement, to conspiracy to possess with intent to distribute

more than fifty grams of crack cocaine, more than five kilograms

of    cocaine,       and     more     than    1000    kilograms           of    marijuana,       in

violation       of      21    U.S.C.    § 846       (2006).          The       district       court

sentenced him to a 405-month term of imprisonment, a one-level

upward variance from the advisory guidelines range.                                   On appeal,

Bellamy asserts that the district court’s application of the

murder cross-reference violated his Sixth Amendment rights and

that    the     court        abused    its    discretion        in    varying          from    the

guidelines range.            Finding no reversible error, we affirm.

              Bellamy first asserts that application of the murder

cross-reference violated his Sixth Amendment rights because the

facts were neither submitted to a jury nor admitted by him.                                     He

concedes, however, that judicial fact-finding is permitted.                                     We

agree.     See United States v. Benkahla, 530 F.3d 300, 312 (4th

Cir.    2008)       (“Sentencing        judges       may   find      facts       relevant       to

determining         a    [g]uidelines        range    by    a   preponderance             of    the

evidence, so long as that [g]uidelines sentence is treated as

advisory and falls within the statutory maximum authorized by

the    jury’s       verdict.”),       cert.    denied,      129      S.    Ct.    950     (2009).

Because       the       405-month      sentence      falls      within         the     statutory

maximum       sentence         of     life    imprisonment,           see        21     U.S.C.A.

                                                2
§ 841(b)(1)(A) (West Supp. 2009), the district court’s finding,

by    a   preponderance      of    the    evidence,     that    Bellamy     committed

first-degree murder in a reign of terror related to his drug

activities did not violate the Sixth Amendment.                        To the extent

that Bellamy urges us to revisit this issue, “a panel of this

court cannot overrule, explicitly or implicitly, the precedent

set by a prior panel of this court.                 Only the Supreme Court or

this court sitting en banc can do that.”                   Scotts Co. v. United

Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002) (internal

quotation marks and citation omitted).

               Bellamy also contends that the district court abused

its   discretion       in   varying      upward   one   offense    level    from    the

advisory guidelines range.               He asserts that the reasons stated

by the district court to support the variance already were taken

into account in the application of the murder cross-reference.

We    review    a    sentence     for    reasonableness        under   an   abuse    of

discretion standard.             Gall v. United States, 552 U.S. 38, 51

(2007); see United States v. Abu Ali, 528 F.3d 210, 261 (4th

Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).

               In    reviewing    the    substantive     reasonableness       of    the

sentence,       we     “tak[e]     into     account     the     totality     of     the

circumstances, including the extent of any variance from the

[g]uidelines range.”          United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (internal quotation marks and citation omitted).

                                            3
Where a sentence is outside the advisory guidelines range, the

appellate court must “consider the extent of the deviation, but

must give due deference to the district court’s decision that

the § 3553(a) factors, on a whole, justify the extent of the

variance.”      Gall, 552 U.S. at 51.            “‘[A] major departure should

be supported by a more significant justification than a minor

one[,]’   [b]ut      a    district    court     need    not    justify      a    sentence

outside the [g]uidelines range with a finding of ‘extraordinary’

circumstances.”          United States v. Evans, 526 F.3d 155, 161 (4th

Cir. 2008) (quoting Gall, 552 U.S. at 47, 50).                              With these

standards     in    mind,     we     have    reviewed     the       district      court’s

explanation        supporting      the      one-level     upward       variance         and

conclude that the court did not abuse its discretion in light of

the multiple murders and shootings committed by Bellamy.

            Accordingly, we affirm the district court’s judgment.

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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