                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4404


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARCUS ANTONIO MCNEILL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:08-cr-00188-F-1)


Submitted:   March 16, 2010                 Decided:   March 31, 2010


Before MICHAEL, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                A    jury     convicted       Marcus    McNeill      of    conspiracy       to

distribute and possess with intent to distribute cocaine base,

in violation of 21 U.S.C. § 846 (2006).                         McNeill also pleaded

guilty     to       distribution       of    cocaine    base,   in    violation        of   21

U.S.C. § 841(a) (2006).                The district court sentenced McNeill to

a total of 420 months of imprisonment and McNeill now appeals.

Finding no error, we affirm.

                McNeill first challenges the district court’s refusal

of   his      proposed        jury     instruction      on    multiple      conspiracies.

“‘The decision to give or not to give a jury instruction is

reviewed        for    an     abuse     of    discretion.’”          United      States     v.

Hurwitz,      459      F.3d     463,    474   (4th     Cir.   2006)       (quoting     United

States v. Moye, 454 F.3d 390, 398 (4th Cir. 2006) (en banc)).

“A multiple conspiracy instruction is not required unless the

proof at trial demonstrates that [the appellant was] involved

only     in         separate     conspiracies          unrelated      to     the     overall

conspiracy          charged      in    the    indictment.”           United      States     v.

Squillacote,          221      F.3d    542,    574     (4th   Cir.     2000)       (internal

quotation marks and citation omitted) (emphasis in original).

“Error will be found in a conspiracy instruction if the proof of

multiple conspiracies was likely to have confused the jury into

imputing guilt to [the defendant] as a member of one conspiracy

because       of     the    illegal     activities       of   members       of   the    other

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conspiracy.”           United States v. Jeffers, 570 F.3d 557, 567 (4th

Cir.), cert. denied, 130 S. Ct. 645 (2009)                               (internal quotation

marks and citation omitted).

                McNeill      argues       that    the     evidence       demonstrated      three

separate conspiracies to distribute cocaine base between McNeill

and three witnesses who testified at trial.                                McNeill contends

that,    as     this     created      a    variance       from     the    single      conspiracy

charged in the indictment, the district court erred in refusing

his     proposed        jury    instruction             on     single      versus       multiple

conspiracies.          We have thoroughly reviewed the record, however,

and conclude that McNeill has failed to demonstrate that he was

prejudiced by the court’s refusal to charge the jury on multiple

conspiracies.

                McNeill also challenges the procedural and substantive

reasonableness          of    the     sentence.           We      review    a    sentence      for

reasonableness,           applying         an     abuse      of     discretion         standard.

Gall v. United States, 552 U.S. 38, 51 (2007); see also United

States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,

130   S.    Ct.    290    (2009).          In     so    doing,     we    first       examine   the

sentence for “significant procedural error,” including “failing

to calculate (or improperly calculating) the [g]uidelines range,

treating the [g]uidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence

based      on   clearly      erroneous           facts,      or   failing       to    adequately

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explain the chosen sentence . . . .”                       Gall, 552 U.S. at 51.

Finally, we “then consider the substantive reasonableness of the

sentence imposed.”           Id.     This court presumes on appeal that a

sentence within a properly calculated advisory guidelines range

is substantively reasonable.               See United States v. Go, 517 F.3d

216, 218 (4th Cir. 2008); Rita v. United States, 551 U.S. 338,

346-56     (2007)      (upholding         permissibility       of    presumption       of

reasonableness for within guidelines sentence).

              McNeill first argues that the district court erred in

calculating the drug weight attributable to him by relying on

testimony     of    witnesses      that    was    not    credible.      The    district

court’s determination of the drug amount involved is a factual

issue reviewed for clear error.                    United States v. Lamarr, 75

F.3d 964, 972 (4th Cir. 1996).                   Under the clear error standard

of   review,    this    court      will    reverse      only   if   “‘left    with    the

definite      and     firm    conviction          that     a   mistake        has    been

committed.’”        United States v. Stevenson, 396 F.3d 538, 542 (4th

Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573

(1985)).      At sentencing, the Government need only establish the

amount of drugs involved by a preponderance of the evidence.

United States v. Brooks, 524 F.3d 549, 560 n.20, 562 (4th Cir.),

cert. denied, 129 S. Ct. 519 (2008); United States v. Cook, 76

F.3d   596,    604   (4th    Cir.    1996).         “[W]here    there    is    no    drug

seizure or the amount of drugs seized does not reflect the scale

                                             4
of the offense, the court shall approximate the quantity of the

controlled substance.”          United States v. D’Anjou, 16 F.3d 604,

614 (4th Cir. 1994).

            We have reviewed the record and find that the district

court did not err in relying on the testimony of trial witnesses

to determine the drug weight it attributed to McNeill.                                    See

Cook, 76 F.3d at 604 (district court afforded “broad discretion

as to what information to credit in making its calculations.”).

We     therefore     conclude      that        the        district       court      properly

calculated the advisory guidelines range.

            McNeill next argues that the district court failed to

adequately explain its chosen sentence and consider the parties’

arguments    for    a   sentence    outside          of    the    advisory       guidelines

range.     See United States v. Carter, 564 F.3d 325, 328-30 (4th

Cir.     2009)     (reaffirming     that        sentencing           court       must    make

individualized assessment on the record and explain rejection of

parties’ arguments for sentence outside guidelines range).                                Our

review of the record, however, reveals that the district court

properly     considered      the        parties’            nonfrivolous          arguments

regarding    the     sentence     and     adequately          explained       its       chosen

sentence.          Accordingly,      we        find        that    the       sentence      is

procedurally reasonable.

            Finally,      McNeill       argues            that     the       sentence      is

substantively unreasonable because the court relied on testimony

                                           5
that was not credible in determining the drug weight and because

the guidelines provide for harsher punishments for cocaine base

offenses than cocaine offenses.          McNeill has failed, however, to

rebut    the   presumption    of   reasonableness      we        accord    to   his

within-guidelines      sentence.        Therefore,     we        find   that    the

sentence is also substantively reasonable.

            Accordingly, we affirm the judgment of the district

court.     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




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