                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4573


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CALVIN DWIGHT MITCHELL, a/k/a Calio,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:12-cr-00270-BO-1)


Submitted:   October 23, 2014             Decided:   December 11, 2014


Before KEENAN, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. Andrew LeLiever, THE LAW CORNER, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Calvin     Mitchell       was       charged    with:     conspiracy        to

distribute and to possess with intent to distribute 280 grams or

more of cocaine base and a quantity of cocaine (Count One); and

distribution of cocaine (Count Two).                   A jury convicted him on

both counts.         In its special verdict, the jury found that the

conspiracy     involved        only     cocaine.           Mitchell        received    an

aggregate sentence of 360 months in prison.                     He now appeals.        We

affirm.

                                             I

             At trial, evidence was introduced that, following his

arrest, police officers advised Mitchell of his Miranda rights.

During an interview, Mitchell admitted that he had distributed

cocaine on May 24, 2012.              Additionally, he stated that he had a

long   history   of     drug    distribution.          Notably,       he    said    that,

between 2001 and the time of his arrest, he had bought between

six    and   seven    ounces    of     crack      cocaine    per    week     from     Nate

McFadgen.      He also reported that, for over a decade, he had

purchased seven ounces of crack per week from another individual

whom he refused to name.

             There     was     also      testimony         at    trial       concerning

Mitchell’s three previous state convictions for dealing crack.

We hold that the district court did not abuse its discretion in

admitting this testimony.              Not only did the testimony tend to

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corroborate Mitchell’s statements during his debriefing, but it

was   pertinent       to    issues     such    as    intent   and     knowledge.      The

evidence thus was not introduced to prove Mitchell’s character

in    order   to     show   he   acted    in       accordance    therewith,     but   for

another,      permissible        purpose.           See   Fed.    R.    Evid.    404(b).

Further, the evidence was relevant, necessary and reliable, and

its    probative      value      was    not    outweighed        by    its   prejudicial

nature.       See United States v. Siegel, 536 F.3d 306, 317 (4th

Cir. 2008); United States v. Queen, 132 F.3d 991, 994-95 (4th

Cir. 1997).

                                              II

              Mitchell contends that, because the jury found that

the conspiracy did not involve crack cocaine, the district court

erred in including crack as relevant conduct when calculating

his base offense level.              In assessing whether a sentencing court

correctly applied the Guidelines, the district court’s factual

findings are reviewed for clear error and its legal conclusions

are reviewed de novo.             United States v. Osborne, 514 F.3d 377,

387 (4th Cir. 2008).

              “[A]     sentencing       court       may   consider      uncharged     and

acquitted conduct in determining a sentence, as long as that

conduct is proven by a preponderance of the evidence.”                             United

States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).                          In ruling

that the Government had met its burden of proof, the district

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court       relied    on     the      trial     record.         Based   on     Mitchell’s

admissions concerning his long-term dealing in crack cocaine and

other evidence discussed above, we hold that the court did not

err    in    including      a    quantity      of    crack    cocaine   when   computing

relevant conduct.

                                               III

              Mitchell’s offense level was enhanced by two levels

based on obstruction of justice.                     See U.S. Sentencing Guidelines

Manual § 3C1.1 (2012).                  He contends that this enhancement was

erroneous.

              The enhancement stemmed from Mitchell’s confrontation

with    a    witness       who    was    cooperating         with   federal    officials.

Mitchell, who knew he was under investigation, approached the

witness,      told     him       he   was     aware    the    witness   was     providing

information      to    federal          agents,      and   attempted    to    engage   the

witness in a physical confrontation.                         This conduct suffices to

establish       that       Mitchell         threatened       the    witness    with    the

intention of discouraging or prohibiting his further cooperation

and, accordingly, justified the enhancement.                         See USSG § 3C1.1,

cmt. n.4(A).

                                               IV

              We accordingly affirm.                 We dispense with oral argument

because the facts and legal contentions are adequately presented



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in the material before the Court and argument would not aid the

decisional process.

                                                       AFFIRMED




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