                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4515


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DONNA MARIE GEORGE,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cr-00431-JCC-1)


ARGUED:   December 6, 2011                 Decided:   February 21, 2012


Before TRAXLER,   Chief   Judge,   and   DUNCAN   and   AGEE,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington,
D.C., for Appellant.    Joshua L. Rogers, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.  ON BRIEF:
Neil H. MacBride, United States Attorney, Gene Rossi, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Donna Marie George was convicted of one count of conspiracy

to   distribute         oxycodone         and    two    counts        of    distribution       of

oxycodone and sentenced to 148 months’ imprisonment.                                      See 21

U.S.C. §§ 841, 846.               George appeals, challenging her convictions

and sentence.          For the reasons set forth below, we affirm.

                                                 I.

      Viewed in the light most favorable to the government, the

evidence presented at trial established that George was addicted

to   prescription         narcotics.             She    fed     her     addiction         through

“doctor       shopping”      –     seeing       multiple      doctors       to    get    multiple

prescriptions          and    selling         the     extra    pills.             Most   of    the

prescriptions      were       for       Oxycontin,      a     time-released         version     of

oxycodone,       although          George        obtained       and        used    other      pain

medications       as    well.           Lisa     and   Richard        Sindelar       were     also

addicts; they supported their habit by forging prescriptions.

Using     a     computer          and     a      copier,       the     Sindelars         created

prescriptions that appeared to be written by a doctor at a pain

clinic.

      A mutual acquaintance introduced George and the Sindelars

in   March      2007,        and     George         thereafter        began       selling     the

Sindelars’ pills.            The Sindelars initially sold the drugs to the

mutual    acquaintance,             who       then     sold     them        to    George,     who

distributed       them       at    the     street      level.          In    May     2007,    the

                                                  2
Sindelars began working directly with George.                             By June 2007,

George    and    the     Sindelars       had       become   good    friends.          George

regularly babysat for the Sindelars’ young children, and Richard

Sindelar occasionally created the fake prescriptions at George’s

house.     George’s adult daughter, Cindy Carter, was frequently at

her house, and Carter and Lisa Sindelar also became friends.

Carter, who was also addicted to pain pills, sometimes served as

one of the runners who took the Sindelars’ forged prescriptions

to a pharmacy for filling.

     In September 2007, Carter was arrested after filling a fake

prescription.          Carter     agreed       to   cooperate      with    the    FBI,   and

Richard Sindelar was arrested shortly after Carter called him to

arrange    a    drug     transaction.           Lisa    Sindelar     was    arrested      in

October 2007.        After the Sindelars were arrested, George carried

on, getting her supply through her doctor-shopping scheme and

occasionally from a connection in Washington, D.C.                               George was

finally arrested by the FBI in August 2009.

     The        Sindelars       eventually           pleaded       guilty        to    drug-

distribution charges, but George proceeded to trial.                              At trial,

Lisa Sindelar testified that she and her husband lacked George’s

contacts       and     that     George         was     their       main     street-level

distributor.         According to Sindelar, she and her husband were

providing       George     with     as     many       as    four    or     five       90-pill



                                               3
prescriptions       a   day,    and   George      was    buying   $8,000     –    $10,000

worth of drugs a week from them.

        George’s position at trial was that while she was addicted

to prescription medications and sometimes bought and sold a few

pills,    she     was   not    part    of   the    conspiracy      operated       by   the

Sindelars.         Although      George     did    not    testify,     her   claim      of

limited    involvement         with   the   Sindelars      was    supported       by   the

testimony of George’s daughter, who was a reluctant witness for

the government.         On cross-examination, Carter disputed much of

Sindelar’s testimony.           Carter testified that George did not know

about the Sindelars’ prescription scheme and that George, who

did not have a job, had money problems and thus could not have

been buying $8,000 – $10,000 worth of pills a week as Sindelar

claimed.     The jury was not persuaded by Carter’s testimony and

found George guilty of conspiracy to distribute oxycodone and

distribution of oxycodone.

     At     the     sentencing        hearing,     the     district     court      heard

testimony from Agent Andrew Lenhart, who testified about the

drug quantities involved in the conspiracy, and from Carter, who

again     disputed      her     mother’s        involvement       in   the       Sindelar

conspiracy        and   testified       about     the     quantity     of    narcotics

personally consumed by George in order to manage her pain.                             The

district court found Agent Lenhart’s testimony to be credible

and accepted the drug-quantity calculations as set forth in the

                                            4
PSR.     The district court determined that George’s base offense

level     was   34     and    that       a     two-level          obstruction-of-justice

enhancement      should      be    applied,         resulting      in   a    total    offense

level of 36.          That offense level, when combined with George’s

category    I   criminal          history,      yielded       an    advisory    sentencing

range of 188-235 months.                The district court varied downward and

imposed concurrent sentences of 148 months for each of the three

counts.    This appeal followed.

                                               II.

       We turn first to George’s claim that she is entitled to a

new     trial   because       the       government        failed        to    fulfill       its

disclosure      obligations        under       Brady    v.    Maryland,       373    U.S.    83

(1963).     Brady and its progeny “require[] a court to vacate a

conviction      and    order        a    new    trial        if    it   finds       that    the

prosecution suppressed materially exculpatory evidence.”                               United

States v. King, 628 F.3d 693, 701 (4th Cir. 2011).                            Accordingly,

a defendant seeking a new trial under Brady must “(1) identify

the existence of evidence favorable to the accused; (2) show

that the government suppressed the evidence; and (3) demonstrate

that the suppression was material.”                    Id.

       A week after trial, the government informed George that,

notwithstanding the government’s “open file” discovery policy,

five documents inadvertently had been placed in a separate file

and thus had not been reviewed by George’s trial attorney.                                 Only

                                                5
three of those documents remain relevant on appeal -- notes from

separate investigative interviews of Lisa and Richard Sindelar

and a document prepared by an FBI agent during the investigation

that summarized the evidence and status of the investigation.

The   notes     of    the       Sindelar     interviews   had    been     reviewed   by

George’s first attorney, who was relieved before trial, but not

by the attorney who represented her at trial.                        The investigation

summary     had   not      been       disclosed   to   either    attorney.        After

learning about the documents, George filed a motion seeking a

new trial, arguing that the government breached its disclosure

obligations and that a new trial was therefore required under

Brady.      The district court denied the motion, concluding that

the investigation summary was neither favorable to George nor

material, and that the Sindelar interview notes, while favorable

to George, had not been suppressed and were not material.

         On     appeal,      George      contends      that    the    documents     were

favorable to her and material, and that they were suppressed

because the government failed to include them in the discovery

file.      George therefore argues that the district court erred by

denying her motion for a new trial.

                           A.    Sindelar Interview Notes

      As      noted   by    the       district    court   in    its     order   denying

George’s       motion      for    a    new    trial,    George’s      first     attorney

personally reviewed (but did not retain a copy of) the notes of

                                              6
the Sindelar interviews.              In light of that fact, the district

court concluded that the interview notes were not suppressed by

the government.       We agree.

      For Brady purposes, “[s]uppressed evidence is information

which   had    been   known     to    the    prosecution        but     unknown    to   the

defense.”      Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 557 (4th

Cir. 1999) (internal quotation marks omitted).                           However, there

is no Brady violation if “defense counsel could have discovered

the   evidence      through    reasonable          diligence,”     United     States     v.

Kelly, 35 F.3d 929, 937 (4th Cir. 1994), or if “the defense

already possesses the evidence,” United States v. Higgs, 663

F.3d 726, 735 (4th Cir. 2011).                   This court has already concluded

that there is no suppression within the meaning of Brady if the

evidence      was   disclosed        to    one     of    the    defendant’s       original

attorneys but not to the attorney who ultimately represented the

defendant at trial.           See King, 628 F.3d at 702.                 Although there

was no open-file discovery policy at issue in King, we do not

believe that factual difference is significant.

      If    the     government        elects       to    comply       with   its    Brady

obligations by instituting an open-file policy, “defense counsel

may reasonably rely on that file to contain all materials the

State is constitutionally obligated to disclose under Brady.”

Strickler     v.    Greene,    527        U.S.    263,    283    n.23    (1999).        The

defendant’s right to rely on the completeness of the discovery

                                             7
file might, under certain circumstances, defeat an argument by

the government that there was no Brady violation because the

evidence could have been discovered by the defense through a

reasonably diligent investigation, see, e.g., Gantt v. Roe, 389

F.3d 908, 912-13 (9th Cir. 2004), and it might likewise help to

establish in collateral proceedings the “cause” necessary for

consideration   of    a    procedurally           defaulted    Brady   claim,   see

Strickler, 527 U.S. at 289.         But when evidence omitted from the

discovery file was nonetheless disclosed to the defense in some

other manner, we fail to see why the defendant’s right to assume

the   completeness    of   the    file       or    the   government’s    imperfect

execution of its open-file policy should somehow invalidate that

prior   disclosure.        As    noted       above,      we   define   “suppressed

evidence” as evidence “known to the prosecution but unknown to

the defense.”   Spicer, 194 F.3d at 557.                 Evidence that has been

disclosed to the defense is not “unknown to the defense” simply

because it was not included in the prosecution’s discovery file.

      In this case, the Sindelar interview notes were disclosed

to one of George’s attorneys, and that disclosure was sufficient

to satisfy the government’s Brady obligations.                     See King, 628

F.3d at 702.     While it may be that George’s first attorney

failed to inform trial counsel of the existence of the notes, or

failed to convey to trial counsel all of the relevant details

from the interview notes, that failure is not attributable to

                                         8
the    government      and     does     not       affect     the      validity    of     the

disclosure.      See id. (“We recognize that some information may

have   failed    to    reach       King’s     trial      counsel,      given    that    King

changed attorneys three times and that his escape from custody

forced the court to reschedule the trial.                            But the Government

need only disclose exculpatory evidence, not ensure that the

defense      further    develop        and    utilize       that      evidence.”);       cf.

Morales v. Ault, 476 F.3d 545, 555 (8th Cir. 2007) (finding

reasonable a state court’s determination that evidence had not

been   suppressed      for     Brady    purposes         when   it    was    disclosed    to

defendant’s original attorney).                   Accordingly, we agree with the

district     court     that     the    Sindelar          interview     notes     were    not

suppressed within the meaning of Brady.

                          B.       Investigation Summary

       The investigation summary appears to be a mid-investigation

review prepared, apparently for personal use, by Andrew Lenhart,

an FBI agent who investigated the case and testified at trial

and at sentencing.           The summary was written at some point before

George was arrested in August 2009, probably in late 2008, given

that   the    latest     date      mentioned        is    October      31,   2008.       The

document gives a synopsis of the Sindelars’ prescription-forging

activities     and     lists    the    evidence          against     the    Sindelars    and

Cindy Carter, among others.                  George is listed as a subject of

the    investigation,        but    her      name     otherwise       appears    only     in

                                              9
reference        to     statements            George       made       to      law        enforcement

officials, which were included in the list of evidence against

other subjects of the investigation.                         The investigation summary

mentions no evidence against George herself.

        There    is    no    dispute       that      the    investigation            summary       was

“suppressed” within the meaning of Brady.                                  As to whether the

summary     is    favorable,            George       argues       that        the    summary        is

exculpatory       and       has       impeachment      value          because       it    shows     no

evidence against her, which suggests that the agent “did not

truly    consider          her    a    co-conspirator            when      [the     summary]       was

prepared, despite a presumably thorough investigation.”                                        Brief

of Appellant at 17.               Even if we were to accept that argument, we

agree with the district court that the summary was not material.

        Undisclosed evidence is material when its cumulative effect

is such that “there is a reasonable probability that, had the

evidence    been       disclosed         to    the     defense,         the       result     of    the

proceeding would have been different.”                             Kyles v. Whitley, 514

U.S. 419, 433-34 (1995) (internal quotation marks omitted).                                         “A

reasonable probability does not mean that the defendant would

more likely than not have received a different verdict with the

evidence,       only    that      the    likelihood         of    a     different         result    is

great    enough       to    undermine         confidence         in     the    outcome       of    the

trial.”     Smith v. Cain, 2012 WL 43512, *2 (U.S. Jan. 10, 2012)

(No. 10-8145) (internal quotation marks and alteration omitted).

                                                10
In our view, the likelihood that disclosure of the investigation

summary would have resulted in a different outcome is so small

that it does not undermine our confidence in the verdict.

      The summary is simply a snapshot of the investigation at a

single    point     in     time;       the    government’s           failure    at     that

particular moment to have nailed down evidence against George

provides no basis for rejecting the evidence later gathered.

Moreover,    the    lack    of    evidence        at    the   time    the    summary    was

prepared was likely a reflection of the evolving stories told by

the   Sindelars.         When    the    Sindelars         were   arrested      and   first

interviewed, they gave statements implicating themselves, each

other, and other family members, but not George.                            The Sindelars

eventually admitted the full scope of their prescription-forging

scheme    and     George’s       involvement           with   that    scheme,     pleaded

guilty, and agreed to cooperate with the government.                              Counsel

for George knew that the Sindelars’ stories to law enforcement

had   evolved      over      time,      and       on    cross-examination         counsel

questioned      Lisa      Sindelar      about          her    failure    to     initially

implicate George and raised the possibility that Sindelar was

shading     her     testimony          to     earn       a    favorable        sentencing

recommendation from the government.                     Had it been disclosed, the

summary perhaps could have provided counsel with another path to

make the same point about the evolution in the Sindelars’ story,

but the summary provided no new basis for impeaching Sindelar or

                                             11
otherwise        challenging    the     government’s        case.      We   therefore

conclude that the investigation summary was not “material” for

Brady purposes.            See United States v. Cooper, 654 F.3d 1104,

1120 (10th Cir. 2011) (Undisclosed evidence that is “cumulative

of evidence of bias or partiality already presented and thus

would have provided only marginal additional support for the

defense” is not material for Brady purposes (internal quotation

marks and alteration omitted)); Tankleff v. Senkowski, 135 F.3d

235,       251   (2d   Cir.   1998)    (“When    a    witness’s     credibility   has

already      been      substantially    called       into   question   in   the   same

respects by other evidence, additional impeachment evidence will

generally be immaterial and will not provide the basis for a

Brady claim.”).

       Because the Sindelar interview notes were not suppressed

and the investigation summary was not material, the district

court committed no error in denying George’s motion for a new

trial. 1




       1
          We need not consider George’s argument that the
district court improperly considered the materiality of the
documents in isolation, rather than considering the cumulative
materiality of all the documents.    See, e.g., United States v.
Ellis, 121 F.3d 908, 916 (4th Cir. 1997). Because the Sindelar
interview notes were not suppressed, the question of materiality
arises only as to the investigation summary.



                                          12
                                            III.

        We turn now to George’s challenges to the sentence imposed

by the district court.

                                              A.

        George first contends that the district court’s explanation

of its drug-quantity determination was insufficient because the

court did not mention the testimony of Cindy Carter, much less

explain why it found her testimony less credible than that of

the Agent Lenhart.            We disagree.

        District courts are required to make findings as necessary

to   resolve       disputed      factual       issues           that    are   relevant       to

sentencing.        See Fed. R. Crim. P. 32(i)(3); U.S.S.G. § 6A1.3.

Although    the     court      need   not     set        out    its    findings     in    great

detail, the findings must be sufficient to show how the court

ruled on the disputed matters and to permit “effective appellate

review of the sentence imposed.”                     United States v. Bolden, 325

F.3d 471, 497 (4th Cir. 2003).

     When       announcing      its    drug-quantity             finding,     the   district

court     stated       that     it    found        the     trial       testimony     of     the

government’s witnesses to be credible as to the nature of the

conspiracy       and    George’s       involvement             in     it,   and   the     court

likewise stated that it found Agent Lenhart’s testimony at the

sentencing hearing to be credible.                        Because Carter’s testimony

about     her    mother’s       involvement          in        the    prescription-forging

                                              13
conspiracy was diametrically opposed to that of the government’s

witnesses, the court’s statement that it found Agent Lenhart and

the    trial     witnesses      to     be    credible        was     an       implicit     but

nonetheless       clear     rejection       of    Carter’s       testimony.         We    have

never required a sentencing court to explain in any detail why

it    found     the    testimony      of    one        witness    more    credible       than

another,       and    the    court’s       explanation       of     its       drug-quantity

finding otherwise was more than sufficient to permit meaningful

appellate review.            See Bolden, 325 F.3d at 497 (“[T]he court

need not articulate findings as to disputed factual allegations

with     minute       specificity.”         (internal        quotation          marks      and

alteration omitted)); see also United States v. Boulware, 604

F.3d 832, 837 (4th Cir. 2010) (district court’s explanation of

its    sentencing      decision      must        “be    sufficient       to    satisfy    the

appellate      court     that   the    district          court    has     considered       the

parties’ arguments and has a reasoned basis for exercising its

own    legal    decisionmaking        authority”         (internal       quotation       marks

and alterations omitted)).

                                             B.

       George     also      challenges       the       substance     of       the   district

court’s drug-quantity finding, arguing that the court erred by

including      pills     that   were       prescribed       for    legitimate       medical

purposes.



                                             14
       When determining the drug quantity attributable to George,

the district court rejected George’s argument that any pills

that     were    properly      prescribed          for     legitimate           medical   needs

should    be    excluded      from    the     calculation.             In    rejecting       this

argument,       the    district      court        relied    on    out-of-circuit          cases

holding that drugs possessed for personal use should be excluded

from the drug-quantity calculation in cases where the defendant

was    convicted       of   distribution           or    possession         with    intent        to

distribute,       but   should       not     be    excluded       if   the       defendant        is

convicted of conspiracy to distribute.                      See, e.g., United States

v. Asch, 207 F.3d 1238, 1243-44 (10th Cir. 2000) (“Every circuit

to    address    the    question       has    held       that    where      a    member      of    a

conspiracy to distribute drugs handles drugs both for personal

consumption and distribution in the course of the conspiracy,

the entire quantity of drugs handled is relevant conduct for

purposes of calculating the base offense level pursuant to the

Guidelines.”); United States v. Kipp, 10 F.3d 1463, 1465-66 (9th

Cir.    1993)    (“Drugs      possessed       for       mere     personal        use   are    not

relevant to the crime of possession with intent to distribute

because they are not part of the same course of conduct or

common     scheme as drugs intended for distribution.” (internal

quotation       marks   omitted)).           Because       George      was       convicted        of

conspiracy,       the       district       court        concluded        that      any    pills



                                              15
prescribed    and     intended      for      her    personal          use   were   properly

included in the drug-quantity calculation.

      On    appeal,       George    contends            that    the    district     court’s

reliance on the out-of-circuit cases was misplaced because those

cases involve “street” drugs, such as crack and marijuana, that

are   illegal    to       possess     in     all        circumstances.          Under    the

Sentencing Guidelines, a defendant convicted of conspiring to

distribute      controlled         substances           “is     accountable        for   all

quantities of contraband with which he was directly involved

and, in the case of a jointly undertaken criminal activity, all

reasonably foreseeable quantities of contraband that were within

the scope of the criminal activity that he jointly undertook.”

U.S.S.G. § 1B1.3 cmt. n.2 (emphasis added).                           George argues that

prescription      medications,             unlike        street        drugs,      are   not

contraband.         And     because        the     district       court     accepted     the

evidence showing that George began taking pain medication to

treat genuine physical problems, George contends that the court

erred by refusing to exclude from the drug-quantity calculations

the pills that were prescribed to her for legitimate medical

purposes.

      At the time of George’s sentencing, there were no published

opinions from this court addressing the personal-use question in

either the street-drug or prescription-drug context.                               We have,

however,     recently       concluded            that     the     distinction       between

                                             16
conspiracy       convictions    and    distribution    convictions         that   has

been drawn in cases involving street drugs is not necessarily

applicable in cases involving prescription drugs.                      See United

States v. Bell, ____ F.3d ____, 2011 WL 6396482 (4th Cir. Dec.

21,   2011).           Recognizing    that    “relevant     conduct    under      the

Guidelines must be criminal conduct,” United States v. Dove, 247

F.3d 152, 155 (4th Cir. 2001), the court in Bell concluded that,

because prescription drugs can be legally possessed, “only those

quantities       the    defendant     conspired   or      intended    to     possess

unlawfully, i.e., with intent to distribute” can be considered

relevant conduct.           Bell, 2011 WL 6396482 at *10.              The court

therefore held that if the government seeks to attribute to the

conspiracy the total quantity of drugs prescribed to a member of

the conspiracy, the government

      must also provide evidence, and the district court
      must make a finding, of something more -- for example
      (1)   that  the   conspiracy  actually   distributed   a
      particular amount; (2) that the person who was
      prescribed the drug lawfully kept and consumed only a
      portion (or none) of the prescribed amount; (3) that
      the pills were obtained fraudulently and thus cannot
      be considered to have been lawfully obtained and
      possessed; or (4) that each and every pill obtained,
      even if pursuant to a valid prescription, was obtained
      with the intent that it would or could be distributed.

Id.   at   *11    (emphasis    added;    citation   and     internal       quotation

marks omitted).         The court believed that requiring anything less

would “create[] an unacceptably high risk that a defendant will




                                         17
be punished for drug quantities a portion of which was lawfully

obtained, possessed and consumed.”                  Id. at *10.

       Although the district court did not have the benefit of

Bell    when      sentencing     George,       it   is    now    apparent       that    the

district court erred by relying on the street-drug line of cases

and attributing to George the full quantity of drugs without

evidence of or a finding of the “something more” required by

Bell.       Id. at *11.       As we explain below, however, the district

court’s error was harmless, and resentencing is therefore not

required.

       Bell       contemplates        excluding          from    the      drug-quantity

calculation those drugs that were “lawfully obtained, possessed

and consumed” under a “valid prescription.”                           Id. at *10, *11.

In this case, it is apparent that none of the drugs obtained

through the Sindelars’ prescription-forgery scheme were lawfully

obtained under a valid prescription.                     See 21 U.S.C. § 843(a)(3)

(making      it    unlawful     “to    acquire      or    obtain      possession       of   a

controlled        substance      by    misrepresentation,              fraud,    forgery,

deception, or subterfuge”); id. § 844(a) (making it unlawful “to

possess       a    controlled     substance         unless      such     substance      was

obtained directly, or pursuant to a valid prescription or order,

from    a     practitioner,      while     acting         in    the    course    of     his

professional practice”).              A strong argument can likewise be made

that    none      of   the   drugs    George     obtained       through    her    doctor-

                                           18
shopping    scheme   were   lawfully    obtained.      See,   e.g.,   United

States v. Young, 992 F.2d 207, 210 (8th Cir. 1993) (concluding

that     narcotics   prescriptions        that   defendant    obtained   by

“misleading     several     different       doctors”   were    not    valid

prescriptions).      Nonetheless, we will assume for purposes of

this opinion that all of the drugs obtained through George’s

doctor-shopping scheme should have been excluded from the drug-

quantity calculation.

       The district court concluded that George should be held

responsible for a total of 43,578 pills equivalent to 9,976.4

kilograms of marijuana, which resulted in a base offense level

of 34.      See U.S.S.G. § 2D1.1(c)(3) (assigning a base offense

level of 34 to cases involving the equivalent of at least 3,000

but less than 10,000 kilos of marijuana).               The prescription-

forging portion of the conspiracy alone involved the equivalent

of 4,103 kilograms of marijuana, such that George’s base offense

level would remain 34 after the exclusion of all doctor-shopping

drugs.     Because the exclusion of the doctor-shopping drugs from

the drug-quantity calculation results in no change to George’s

offense level, the district court’s error was harmless.                  See

United States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th Cir.

2011).




                                     19
                                      C.

      Finally, George argues that the district court’s mistaken

view of her criminal record requires a remand for resentencing.

We disagree.

      One of the reasons the district court gave for its variance

sentence was the substantial lapse of time since George’s last

conviction.       The   court   stated     that   George’s   last    conviction

occurred in 1998, but the conviction actually occurred in 1988.

George argues that if the district court had realized that it

had   been    twenty-two   years,   not    twelve   years,   since    her     last

conviction, the court might have imposed an even lower sentence,

and George therefore contends that the court’s error about the

date of her prior conviction requires resentencing.                     Because

George did not object or otherwise bring the correct date to the

court’s attention, we review this claim for plain error only.

      Under    plain-error      review,    George    bears   the     burden     of

establishing that the district court erred, that the error was

plain, and that the error affected her substantial rights.                    See,

e.g., United States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011).

A sentencing error affects a defendant’s substantial rights if

there is a non-speculative basis in the record for concluding

that the court would have imposed a lower sentence but for the

error.   See United States v. Knight, 606 F.3d 171, 178 (4th Cir.

2010); United States v. Hernandez, 603 F.3d 267, 273 (4th Cir.

                                      20
2010).       In    this      case,    there    is    nothing       in   the     record

affirmatively indicating that the court would have imposed a

lower sentence if it had realized that more time had elapsed

since George’s last conviction.                Accordingly, even if we assume

that   plain       error   occurred,    George      is    not   entitled   to   relief

because she cannot show that the error affected her substantial

rights. 2

                                         IV.

       For the foregoing reasons, we conclude that the district

court properly denied George’s motion for a new trial, and we

therefore affirm George’s convictions.                    And because we conclude

that       the    district    court    committed         no   reversible   error   in

sentencing, we likewise affirm George’s sentence.

                                                                              AFFIRMED




       2
          George contends that the sentencing errors she has
identified require the district court to reconsider its
forfeiture order.   Because we have rejected George’s sentencing
challenges, we likewise reject her forfeiture challenge.



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