UNITED STATES of America, Plaintiff-Appellee, v. Alexander BARAJAS, Defendant-Appellant, 203 F. App'x 433

PER CURIAM: Alexander Barajas was sentenced to ninety-one months imprisonment for conspiracy to possess with intent to distribute in excess of 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a), 846 (2000). We affirmed his conviction, vacated the sentence, and remanded for further proceedings consistent with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005). See United States v. Barajas, 152 Fed.Appx. 284 (4th Cir.2005) (unpublished).

On remand, the district court re-sentenced Barajas to eighty-four months imprisonment. Barajas again appeals, contending, first, that the district court erred in denying a minor role reduction, pursuant to U.S. Sentencing Guidelines Manual § 3B1.2 (2005). A defendant’s role in the offense is a factual question reviewed for clear error. United States v. Sayles, 296 F.3d 219, 224 (4th Cir.2002). The defendant has the burden to show that he is entitled to a minor role adjustment. United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir.1999).

The district court should examine the defendant’s conduct relative to that of other defendants and to the elements of the offense of conviction. Id. The critical inquiry is whether the defendant’s conduct is material or essential to the commission of the offense. Id. Because Barajas admitted that he agreed to drive a tractor-trailer containing over 370 kilograms of marijuana from Los Angeles to North Carolina, we find that the district court’s refusal to grant a minor role adjustment was not clearly erroneous.

Next, Barajas argues that the district court erred in refusing to apply the safety valve provision under 18 U.S.C. § 3553(f), USSG § 5C1.2. To qualify for sentencing under the safety valve provision, a defendant must meet all five criteria set out in USSG § 5C1.2 (a)(l)-(5). The fifth criteria is that, by the time of sentencing, the defendant has truthfully provided to the Government all information and evidence in his possession concerning the offense. Here, Barajas provided conflicting information about the role of a co-defendant.

The district court noted at Barajas’ re-sentencing hearing that Barajas had provided false testimony at his co-defendant’s sentencing hearing. Accordingly, we find that the district court did not clearly err in refusing to apply the safety valve reduction. Finally, Barajas argues that his sentence is unreasonable. After the Supreme Court’s decision in Booker, a sentencing court is no longer bound by the range prescribed by the Sentencing Guidelines. Hughes, 401 F.3d at 546.

In determining a sentence post -Booker, however, sentencing courts are still required to calculate and consider the guideline range prescribed thereby as well as the factors set forth in 18 U.S.C.A. § 3553(a). Id. If the sentence imposed is within the properly calculated guideline range, it is presumptively reasonable. United States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, — U.S. -, 126 S.Ct. 2309, 164 L.Ed.2d 828 (2006).

Here, the district court appropriately treated the guidelines as advisory and properly calculated and considered the guidelines range as well as the relevant factors under § 3553(a). Barajas’ sentence is below the statutory maximum of forty years imprisonment. Barajas contends that the sentence was unreasonable because it was greater than necessary to achieve the congressional sentencing objectives set forth in 18 U.S.C. § 3553(a)(2). However, his claims are not adequate to rebut the presumption that the sentence within the guidelines range is reasonable. See Green, 436 F.3d at 456-57.

We conclude that the sentence imposed by the district court was reasonable. Accordingly, we affirm Barajas’ 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.