Vacated by Supreme Court, January 7, 2008



                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5230



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TYNISA DOVON RANDOLPH,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-05-20)


Submitted:   May 26, 2006                  Decided:   June 14, 2006


Before WILLIAMS, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant.     Thomas E. Johnston, United States
Attorney, David E. Godwin, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Tynisa Dovon Randolph pled guilty to possession with

intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a), (b)(1)(C) (2000). She received a 121-month sentence. On

appeal, she argues that the district court erred in not giving her

a two-level reduction for her role as a “minor participant,” and in

ruling that it lacked the authority to use a ratio other than the

100:1 ratio established by Congress in calculating the advisory

guideline range for a cocaine base offense.      We affirm.

           Randolph first argues that the court erred in denying her

a reduction based on her role as a “minor participant” pursuant to

U.S. Sentencing Guidelines Manual § 3B1.2(b) (2004).        The standard

of   review   for   factual   determinations,   such   as   whether   the

appellant’s conduct warrants a minor-role sentencing reduction, is

clear error.    United States v. Daughtrey, 

, 218 (4th

Cir. 1989).    A defendant who is only a “minor participant” in a

criminal activity may have his offense level reduced by two levels.

USSG § 3B1.2(b).    This applies to a defendant “who is less culpable

than most other participants, but whose role could not be described

as minimal.”    USSG § 3B1.2(b), comment. (n.5).       We find that the

district court’s refusal to grant Randolph a two-level reduction

for being a “minor participant” was not clear error.

          Randolph also claims that the court erred in ruling that

it lacked authority to use a ratio other than the 100:1 ratio


                                  - 2 -
established by Congress in calculating the advisory guideline range

for a cocaine base offense.   Randolph’s argument is foreclosed by

Circuit precedent. See United States v. Eura, 

, 633-34

(4th Cir. 2006) (holding that, after United States v. Booker, 

(2005), a sentencing court cannot vary from advisory

sentencing range by substituting its own crack cocaine/powder

cocaine ratio for the 100-to-1 ratio established by Congress);

United States v. Burgos, 

, 876 (4th Cir. 1996) (en banc)

(upholding validity of 100-to-1 sentencing disparity).

          Accordingly, we affirm Randolph’s 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




                               - 3 -