United States v. Burman

225 F. App'x 198

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 8, 2007
• Docket: 06-4596
• Status: Unpublished

Opinion

PER CURIAM:

Allah Burman appeals his sentence imposed following this court’s remand for resentencing. See United States v. Burman, 151 Fed.Appx. 260 (4th Cir.2005) (unpublished). Finding no error, we affirm.

On appeal, Burman initially contends that the presumption of reasonableness this court affords post -Booker * sentences imposed within a properly calculated Guidelines range is unconstitutional. This court’s precedent, however, forecloses this argument. See, e.g., United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.2006), petition for cert. filed, — U.S.L.W. — (U.S. July 21, 2006) (No. 06-5439); United States v. Johnson, 445 F.3d 339, 341-42 (4th Cir.2006); United States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, — U.S.—, 126 S.Ct. 2054, 164 L.Ed.2d 804 (2006); United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, — U.S.—, 126 S.Ct. 2309, 164 L.Ed.2d 828 (2006). Because one panel of this court cannot overrule another, we decline Burman’s invitation to ignore established circuit authority. See United States v. Chong, 285 F.3d 343, 346-47 (4th Cir.2002).

Burman also contends that the district court erred by sentencing him on facts that were not proven beyond a reasonable doubt. However, after Booker, sentencing courts are still required to calculate and consider the Guidelines range prescribed thereby as well as the factors set forth in 18 U.S.C. § 3553(a) (2000). United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). This court has previously noted that sentencing factors should continue to be evaluated based on the preponderance of the evidence. United States v. Morris, 429 F.3d 65, 72 (4th Cir.2005). Thus, we conclude the district court’s use of a preponderance of the evidence standard was proper in Burman’s post -Booker resen-tencing.

Accordingly, we deny Burman’s motion for hearing and 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.

* United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).