                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-11395                ELEVENTH CIRCUIT
                                                           FEBRUARY 3, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                             ACTING CLERK

                     D. C. Docket No. 08-00320-CR-WS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DARIUS PETTWAY, SR.,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________

                              (February 3, 2010)

Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

     Darius Pettway appeals his concurrent sentences of 240 and 262-months’
imprisonment, imposed following a jury verdict finding him guilty on multiple

counts of possession with intent to distribute crack cocaine, in violation of 21

U.S.C. § 841(a)(1).

                                        I. Due Process

       On appeal, Pettway argues that the government should have provided him

notice prior to sentencing that one of its witnesses would testify at sentencing that

he had bought crack cocaine from Pettway for a longer period of time than he had

indicated during his trial testimony. Pettway contends that the government’s

failure to provide this information that was favorable to him, unavailable to his

counsel, relevant to his punishment, and that could undermine his sentence violated

his due process rights as recognized in Brady v. Maryland, 373 U.S. 83 (1963)1 and

Giglio v. United States, 405 U.S. 150 (1972).2 Specifically, Pettway contends that


       1
          In Brady, the Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373
U.S. at 87. In order to establish a Brady claim, a defendant must show that: (1) the government
possessed evidence favorable to the defendant, including impeachment evidence; (2) the
defendant did not possess the evidence, nor could he obtain it himself with any reasonable
diligence; (3) the government suppressed the favorable evidence; and (4) had the evidence been
disclosed to the defense, a reasonable probability exists that the outcome of the proceedings
would have been different. United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001).
       2
           In Giglio, the Supreme Court held that “deliberate deception of a court and jurors by
the presentation of known false evidence is incompatible with” due process. 405 U.S. at 153. A
Giglio error requires that (1) the prosecutor knowingly used false testimony or failed to correct
false testimony on discovery, and (2) there is “any reasonable likelihood that the false testimony
could have affected the judgment.” Davis v. Terry, 465 F.3d 1249, 1253 (11th Cir. 2006)
(quotations and ellipsis omitted).

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the witness’s trial testimony that he used crack cocaine for about two years and

knew Pettway for about three years was materially different from his sentencing

testimony that he had been using and buying crack cocaine from Pettway for nearly

six years and that the government’s failure to disclose this information to the

defense precluded him from impeaching this witness. Because Pettway did not

raise a challenge to his sentence based on either Brady or Giglio with the

sentencing court, our review is for plain error. United States v. Rodriguez, 398

F.3d 1291, 1297-98 (11th Cir. 2005).3

        After reviewing the parties’ briefs and the record in this case, we conclude

that the government did not commit a Brady violation because it did not possess

any evidence favorable to Pettway that was unavailable to him. Pettway was

represented by the same counsel at the guilt and sentencing phases of his trial.

Thus, the witness’s trial testimony was available to Pettway and once the witness

testified differently at sentencing Pettway had all of the information he needed to

impeach the witness. Moreover, Brady requires that the suppressed evidence bear

on the outcome of the proceeding. See Hansen, 262 F.3d at 1234. In regard to the

witness’s testimony, the sentencing court stated that even if the witness’s estimate


        3
          To prove plain error, a defendant must show: (1) error, (2) that is plain, and (3) that
affects substantial rights. Rodriguez, 398 F.3d at 1298. If all three conditions are met, we will
exercise discretion to recognize the error, if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.

                                                    3
of the amount of drugs he bought from Pettway was “somewhat incorrect,” the

court was comfortable that he bought enough to reach the 150 grams necessary for

the sentence imposed.

      Further, the government did not commit a Giglio error because Pettway did

not establish that the government knowingly presented materially false testimony

that had a reasonable likelihood of affecting the judgment. Other than the

discrepancy in the witness’s testimony, Pettway presented no evidence that the

government knowingly solicited false testimony.

      Accordingly, the district court did not plainly err in sentencing Pettway to

262 months’ imprisonment.

                             II. Guideline Calculation

      Pettway argues that the district court’s drug quantity determination was

clearly erroneous, resulting in an inaccurate guideline range. He argues that the

district court based its determination on incredible and deficient witness testimony

at trial and sentencing.

      A district court’s determination of drug quantity used to establish a

defendant’s base offense level under the Sentencing Guidelines is reviewed for

clear error. United States v. Lawrence, 47 F.3d 1559, 1565 (11th Cir. 1995).

When the defendant objects to the base offense level, the government must



                                          4
establish the quantity of drugs by a preponderance of the evidence. Id. at 1566.

Where the district court’s decision on drug-quantity attribution is based on

testimony of witnesses who appear before the court, great deference is given to its

assessment of the credibility and evidentiary content of that testimony. United

States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995). Further, the Sentencing

Guidelines provide that “in an offense involving an agreement to sell a controlled

substance, the agreed-upon quantity of the controlled substance shall be used to

determine the offense level unless the sale is completed and the amount delivered

more accurately reflects the scale of the offense.” U.S.S.G. § 2D1.1, comment

(n.12).

      The district court based its total drug calculation of at least 150 grams of

crack cocaine on the testimony of witnesses who established that Pettway

negotiated a controlled buy with undercover police officers for 112 grams of crack

cocaine and sold at least another 38 grams to others. Lee, 68 F.3d at 1276.

Further, the district court gave specific reasons for finding that the government

proved by a preponderance of the evidence that Pettway was responsible for the

150 grams of crack cocaine necessary to justify his advisory guideline range.

Lawrence, 47 F.3d at 1566-69.

      AFFIRMED.



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