                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4552


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAMON DOCK, JR., a/k/a Damon Dock,

                Defendant – Appellant.



                             No. 12-4773


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAMON DOCK, a/k/a Corky,

                Defendant – Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, District
Judge. (1:11-cr-00026-JPJ-PMS-4; 1:11-cr-00026-JPJ-PMS-3)


Submitted:   July 12, 2013                 Decided:   August 27, 2013


Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Wayne D. Inge, LAW OFFICE OF WAYNE D. INGE, Roanoke, Virginia,
for   Appellant   Damon   Dock,   Jr.,   Michael   T. Hemenway,
Charlottesville, Virginia, for Appellant Damon Dock. Timothy J.
Heaphy, United States Attorney, Roanoke, Virginia, Zachary T.
Lee, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

         Damon       Dock,     Jr.,     (“Junior”)      and    his   father,   Damon       Dock

(“Corky”), appeal their convictions after they were found guilty

by   a       jury    of   conspiracy        to   distribute        and   possess    with   the

intent to distribute five kilograms or more of cocaine base in

violation of 21 U.S.C. §§ 841(b)(1)(A) and 846.                              Junior claims

that         the    district     court      erred     when    it   refused    to    impose   a

sentence           less   than    the    statutory      mandatory        minimum   sentence.

Corky claims that the evidence is insufficient to support the

jury’s verdict and that the district court erred in the amount

of drugs it attributed to him for sentencing purposes.

         For the reasons that follow, we affirm.



                                                 I.

                                                 A.

         From the end of 2010 until May 2011, Corky distributed an

approximate           total      of   two    kilograms        of   cocaine   base    (“crack

cocaine”) to co-defendants Chris Berry and Amy Moser, Berry’s

girlfriend. *             In   exchange, Berry gave Corky stolen property,

which Corky’s girlfriend, Hope Leonard, then sold.


         *
       Because the jury returned a guilty verdict, we review the
evidence in the light most favorable to the government.      See
United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en
banc).



                                                 3
       On    multiple       occasions      during       the     same     timeframe,       Junior

traveled with Corky and Leonard to Johnson City, Tennessee, to

meet Corky’s supplier, Chris Avery, and transport crack cocaine

to     Corky’s       residences       in     Bristol,         Tennessee,        and     Bristol,

Virginia.

       On May 19, 2011, Berry, Moser, Corky, Leonard, and Junior

checked into a hotel in Bristol, Tennessee, and spent the day

smoking crack cocaine.                At one point, Leonard and Corky left to

get more crack cocaine from Avery and returned with one-half to

three-quarters of an ounce of the drug.                         Later in the day, Corky

sent       Leonard     to    deliver       crack       cocaine     to     one     of     Corky’s

customers.           After    Leonard       left,       the     United    States        Marshals

Service, which had been conducting surveillance on the hotel

room and had previously obtained an arrest warrant for Berry,

identified Berry in the room and made entry.                              Deputy Marshals,

along with other law enforcement officers, took Berry, Moser,

Corky,      and   Junior      into    custody.           The    officers     found      digital

scales,      drug      paraphernalia,         a       Beretta    handgun,        prescription

medication, and 5.7 grams of crack cocaine in the room.

                                              B.

       A    federal     grand     jury     returned        a    multi-count           indictment

charging      Corky,        Junior,    and    their       four    co-defendants--Berry,

Leonard,       Avery,       and   Avery’s         girlfriend,          Maggie     Welch--with

conspiring        to    distribute         and        possess     with     the    intent     to

                                                  4
distribute five kilograms or more of cocaine base in violation

of 21 U.S.C. §§ 841(b)(1)(A) and 846.

      Corky and Junior pleaded not guilty.                        At trial, several of

Corky      and   Junior’s    co-defendants             testified.        Moser    testified

that she had seen Corky with ten grams of crack cocaine on the

day they were arrested.             She also saw Corky give Junior crack

cocaine on at least one prior occasion and had once purchased

crack cocaine from Junior.                Moser also drove Junior to Johnson

City,      Tennessee,    to    pick       up       a    quantity    of    crack     cocaine

“[p]robably bigger than a golf ball” from Avery.                         J.A. 96.

        Welch testified that she saw Avery deliver “cookies” of

crack cocaine to Corky’s residence on at least two occasions.

She further testified that Avery and Corky would transact their

business in the driveway of Corky’s home.

        Berry testified that he and Moser obtained varying amounts

of crack cocaine from Corky “on a daily basis” from the end of

2010 until May 2011.           J.A. 264.               Berry saw Avery deliver crack

cocaine to Corky on two occasions--bringing half of a kilogram

on   his    first    visit    and   approximately           one    kilogram      the   next.

According to Berry, Junior transported crack cocaine that Junior

received from Avery in Johnson City, Tennessee, to Corky’s homes

in   Bristol,       Tennessee,      and    Bristol,         Virginia.         Berry    also

traveled with Corky and Junior numerous times to pick up crack

cocaine from Avery.

                                               5
                                             C.

       The district court sentenced Junior--without objection--to

the     statutory       mandatory       minimum         sentence     of     240   months’

imprisonment.       Corky objected to the drug weight calculations

contained      within     his    presentence            report    (“PSR”).        The    PSR

attributed to him not less than 840 grams but not more than 2.8

kilograms of crack cocaine, placing Corky at a total offense

level    of    thirty-four.           The    district      court    overruled      Corky’s

objection and sentenced him to 132 months’ imprisonment.



                                             II.

       Junior challenges the district court’s refusal to impose a

sentence less than the mandatory minimum sentence provided by

§ 841(b).      Because Junior did not object to his sentence when it

was imposed, we review the district court’s judgment for plain

error.        United States v. Lynn, 592 F.3d 572, 577 (4th Cir.

2010).        To prevail on appeal, Junior must show that “(1) an

error    was    made,    (2)    the    error       is    plain,    and    (3)   the     error

affects substantial rights.”                 United States v. Massenburg, 564

F.3d    337,    342-343    (4th       Cir.    2009)      (citing    United      States    v.

Olano, 507 U.S. 725, 731 (1993)); see also Fed. R. Crim. P.

52(b).

       Junior contends that the district court had the authority

to sentence him to a term of imprisonment less than that which

                                              6
is provided in § 841(b).           We disagree.          In fact, we have held

that “[e]xcept upon motion of the [g]overnment on the basis of

substantial assistance, a district court . . . may not depart

below a statutory minimum.”         United States v. Robinson, 404 F.3d

850, 862 (4th Cir. 2005).          Since no such motion exists in this

case, the district court lacked the authority to sentence Junior

to less than the statutory mandatory minimum.

     In Miller v. Alabama, 132 S. Ct. 2455 (2012), which Junior

relies   upon   for    his   argument,       the   Supreme    Court   invalidated

mandatory life terms of imprisonment without parole for those

defendants under the age of 18.               In this case, however, Junior

was twenty years old at the time of his sentencing.                    Therefore,

Miller is of no help to Junior.

     Junior next argues that his sentence amounts to cruel and

unusual punishment, in violation of the Eighth Amendment.                        We

again disagree, as “the mere fact that [Junior’s] . . . sentence

was mandatorily imposed does not render it ‘cruel and unusual.’”

United   States   v.    Kratsas,    45   F.3d      63,   69   (4th    Cir.   1995).

Moreover, we will not conduct a proportionality review “for any

sentence less than life imprisonment without the possibility of

parole.”   United States v. Ming Hong, 242 F.3d 528, 532 & n.3

(4th Cir. 2001).

     Junior’s reliance on United States v. C.R., 792 F. Supp. 2d

343 (E.D.N.Y. 2011), to support his Eighth Amendment argument is

                                         7
misplaced.      In C.R., the district court found that a statutory

minimum        five-year         term      of     imprisonment         violated         a

developmentally        immature       defendant’s       Eighth   Amendment        rights.

We are not bound by that holding and, in any event, there is

nothing in the record to suggest that Junior is, or has ever

been,    developmentally           immature.      Accordingly,        this    argument

fails.

      Lastly, Junior contends that the district court erred when

it   failed     to    consider       the   factors      set   forth   in     18    U.S.C.

§ 3553(a) in arriving at its sentence.                    This claim lacks merit,

as we have previously concluded that “no conflict exists between

§    3553(a)    and    .   .   .     statutorily-imposed         mandatory        minimum

sentence[s].”         United States v. Crenshaw, 486 F. App’x 379, 380

(4th Cir. 2012) (unpublished); see also United States v. Kellum,

356 F.3d 285, 289 (3d Cir. 2004) (stating that mandatory minimum

sentences      “clearly        fit      within    the     ‘except     as     otherwise

specifically         provided’       exclusion    of     3551(a)”).        Thus,      the

district court’s failure to consider the § 3553(a) factors was

not error, plain or otherwise.



                                           III.

      Corky challenges the sufficiency of the evidence to sustain

the jury’s finding of guilt beyond a reasonable doubt.                            He also



                                            8
challenges       the    district    court’s      adoption     of       his     PSR’s    drug

weight calculation.

                                            A.

       As to his first claim, Corky contends that the government’s

evidence “proved nothing more than a buyer-seller relationship

between [Corky] and the witnesses for the government” and that

the government failed to prove the existence of a conspiracy to

distribute crack cocaine.           Appellant’s Br. at 15.

       Corky characterizes the testimony of his coconspirators and

codefendants      as    incredible,       claiming    that       almost      all   of    the

government’s       witnesses       were     “drug    users,       drug       dealers,     or

convicted felons.”          Appellant’s Br. at 16.                 Corky also notes

that most were testifying in the hopes of receiving a future

sentence reduction as part of their plea to federal conspiracy

charges.

       This argument presents a question of law which we review de

novo.      United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

2005).      In    determining      the     sufficiency      of     the    evidence,      we

consider “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have     found    the    essential        elements   of     the        crime    beyond    a

reasonable       doubt.”     Jackson       v.    Virginia,       443     U.S.    307,    319

(1979).     We will affirm a jury verdict “if there is substantial

evidence . . . to support it.”                   Glasser v. United States, 315

                                            9
U.S. 60, 80 (1942).              “[S]ubstantial evidence is evidence that a

reasonable         finder     of     fact       could     accept        as   adequate       and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”               Burgos, 94 F.3d at 862.                   In conducting

this    review,      we    must    remain       cognizant       that    “[t]he      jury,   not

[this]      court,    weighs       the   credibility       of     the    evidence.”         Id.

“[I]f        the          evidence        supports          different,           reasonable

interpretations,           the     jury        decides    which        interpretation        to

believe.”      Id.

       We    have    independently          reviewed      the    record,      and    conclude

that there was substantial evidence from which a rational jury

could convict Corky of the charged offense.                             The jury weighed

the testimony of the government’s witnesses and found them to be

credible, and we have no cause to conclude otherwise.

                                                B.

       Corky next contends that the evidence presented at trial

supports a drug weight calculation of no more than 280 grams,

the    minimum      amount    that       the    jury     specifically        attributed      to

Corky.      As a result, Corky argues, the district court erred when

it attributed to him no less than 840 grams but no more than 2.8

kilograms of crack cocaine.

       “In assessing whether [the district] court properly applied

the    [Sentencing]         Guidelines,         we     review    the     court’s      factual

findings for clear error.”                  United States v. Osborne, 514 F.3d

                                                10
377, 387 (4th Cir. 2008) (internal quotations omitted).                                   “In

determining    the     amount       of    drugs    attributable      to      a    defendant

convicted of drug conspiracy, the district court may consider

relevant information that is prohibited from being introduced at

trial . . . .        Further, the district court may attribute to the

defendant the total amount of drugs involved in the conspiracy.”

United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).

       The record evidence in this case provides ample support for

the district court’s drug weight calculation.                         Indeed, Avery’s

testimony     that     he     and        Welch    “went    through       a       couple    of

[kilograms],    easy,”        during       the    time    Avery    was    buying       crack

cocaine from Corky, is alone sufficient to support the district

court’s finding.       J.A. 270.           Accordingly, the district court did

not    err,   much     less     plainly,          when    it   accepted          the   PSR’s

determination     as   to     drug       weight,    and    enhanced      Corky’s       total

offense level to thirty-four.



                                            IV.

       We affirm the district court’s judgments.                    We dispense with

oral   argument      because       the     facts    and    legal    contentions           are

adequately    presented       in    the     materials      before    this        court    and

argument would not aid the decisional process.


                                                                                   AFFIRMED


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