                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-5048



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JANISON VEAL,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:02-cr-00043-JPB)


Submitted:   September 30, 2008           Decided:   October 8, 2008


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


S. Andrew Arnold, ARNOLD CESARE & BAILEY, PLLC, Shepherdstown, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Janison Veal appeals his amended sentence, following the

district court’s grant of resentencing relief on Veal’s motion

filed pursuant to 28 U.S.C. § 2255 (2000).1       Veal pled guilty to

three counts of distribution of crack cocaine and one count of

possession with intent to distribute crack cocaine, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2000).       The probation officer

prepared a Presentence Investigation Report, in which he assigned

Veal a base offense level of thirty-two, based on the amount of

drugs involved,2 pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 2D1.1(c)(4) (2002), and an adjusted offense level of

thirty-four,   after   application   of   a   two-level   increase   for

obstruction of justice, pursuant to USSG § 3C1.1.         Combined with

Veal’s criminal history category of VI, the total offense level of

thirty-four corresponded to a guidelines sentencing range of 262 to

327 months’ imprisonment.   See USSG Ch. 5, Pt. A, table.      However,

the statutory maximum sentence applicable to Veal’s conviction is



     1
      On direct appeal, this court affirmed Veal’s conviction and
sentence. United States v. Veal, 2004 WL 233293 (4th Cir. Feb. 9,
2004) (unpublished).
     2
      In addition to the drug weight as set forth in the indictment
relative to the counts to which Veal pled guilty, the Government
asserted that the total weight attributable to Veal was 118.34
grams to 217.94 grams of crack cocaine, and it was on this amount
that the probation officer based Veal’s relevant conduct for
purposes of calculating his base offense level.       As discussed
infra, the district court revised the relevant conduct calculation
prior to sentencing.

                                - 2 -
twenty years, see 21 U.S.C. § 841(b)(1)(C) (2000); thus the maximum

statutory sentence of twenty years became the guideline sentence

pursuant to USSG § 5G1.1(a).        On resentencing, Veal received a

sentence of 240 months’ imprisonment, which was the same sentence

he received originally.

           Veal appeals from his amended sentence, challenging the

district court’s determination of relevant conduct, asserting that

it was improperly based on unreliable hearsay, and claiming error

in the district court’s alleged use of a statistically unreliable

sampling method.    He also claims his sentence was unreasonable.

           This court reviews for clear error the district court’s

drug quantity determination.       United States v. Fletcher, 74 F.3d

49, 55 (4th Cir. 1996).        In determining relevant conduct, the

district court may consider any relevant and reliable evidence

before it, including hearsay.       United States v. Bowman, 926 F.2d

380, 381-82 (4th Cir. 1991).       In fact, hearsay alone can provide

sufficiently reliable evidence of drug quantity.       United States v.

Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992).         The Government has

the burden of establishing the amount of drugs used for sentencing

calculations by a preponderance of the evidence.       United States v.

Cook, 76 F.3d 596, 604 (4th Cir. 1996).       We find no merit to Veal’s

challenges   to   the   district   court’s   determination   of   relevant

conduct.




                                   - 3 -
            While Veal asserts error in the district court’s reliance

on testimony and statements of witnesses who asserted that they

purchased crack cocaine from Veal, he offers no proof that the

court’s factual findings as to relevant conduct were clearly

erroneous.    See United States v. Adams, 988 F.2d 493, 495 (4th Cir.

1993).     Rather, he offers only conclusory allegations that the

witnesses were unreliable, which is insufficient to establish clear

error.     We give appropriate deference to the district court’s

findings     that    the    evidence      on    which   relevant   conduct    was

established was reliable,3 and find that the Government proved the

disputed relevant conduct by a preponderance of the evidence.

There is no reversible error on this basis.               Fletcher, 74 F.3d at

55.

            Veal     also   challenges     the    district   court’s   relevant

conduct    determination      on    the   basis    that   the   district     court

allegedly    erred    in    using   a   statistically     unreliable   sampling

method.     Specifically, he asserts that using the average of the

three controlled buy amounts, i.e., .67 grams,4 to support the


      3
      It is noteworthy that the evidence of relevant conduct was
determined to be sufficiently consistent and reliable by two
different district court judges, one at each of the two sentencing
proceedings.
      4
      The Government used three controlled buys as the basis for
its calculation of relevant drug weight, as set forth in the
indictment: .47 grams of crack in exchange for $100; .88 grams in
exchange for $100; and 1.71 grams in exchange for $200. It then
averaged these buys to conclude that Veal sold on average, .67
grams for $100.

                                        - 4 -
conclusion that Veal sold .67 grams for $100 was statistically

inaccurate and over-inflated his total relevant conduct.

          A district court has clear authority to approximate the

quantity of a drug in its determination of relevant conduct and to

rely upon circumstantial evidence and statistical methods in making

that determination.   See Uwaeme, 975 F.2d at 1021; see also USSG

§ 2D1.1 Application Note 12.   Here, the district court stated that

the statistical analysis proffered by the Government did not

sufficiently aid in its understanding of the case, and instead

relied upon the testimony of the case agent, Trooper Evans, who the

court recognized as an expert, to inform the court what was the

average weight of crack one could purchase for $100. Trooper Evans

testified that .5 grams of crack cocaine per $100 was a fair

calculation of Veal’s relevant conduct, based on Evans’ specific

experience and the case, rather than the .67 grams proffered by the

Government.   At the conclusion of Trooper Evans’ testimony, and

following its consideration of the statements and grand jury

testimony of the seven individuals and the confidential informant,

the district court used the lower figure of .5 grams of crack per

$100 suggested by Trooper Evans, and determined that Veal was

accountable for between 50 and 150 grams of crack cocaine, with an

attendant offense level of thirty-two.

          Hence, the district court in this case did exactly as

suggested by the Guidelines.     Moreover, it did not utilize the


                               - 5 -
contested .67 gram figure which Veal complains is statistically

unreliable.   We find that the district court’s relevant conduct

determination was not clearly erroneous, and Veal’s contention to

the contrary is without merit.

          Finally,   Veal    claims   his   sentence   is    unreasonable,

arguing that a sentence at 57-71 months would be sufficient, but

not greater than necessary, to comply with the directives set forth

in 18 U.S.C. § 3553(a)      (West 2000 & Supp. 2008).       We will affirm

a sentence imposed by the district court if it is within the

statutorily prescribed range and reasonable.           United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).                Although the

guidelines are no longer mandatory, they must still be consulted

and taken into account when sentencing.       United States v. Booker,

543 U.S. 220, 264 (2005).      An error of law or fact can render a

sentence unreasonable.      United States v. Green, 436 F.3d 449, 456

(4th Cir. 2006). We review a district court’s factual findings for

clear error and its legal conclusions de novo.         United States v.

Hampton, 441 F.3d 284, 287 (4th Cir. 2006).

          In sentencing, the district court must:            (1) properly

calculate the guideline range; (2) determine whether a sentence

within that range serves the factors under 18 U.S.C. § 3553(a)

(2000); (3) implement mandatory statutory limitations; and (4)

explain its reasons for selecting a sentence, especially a sentence

outside the range.   Green, 436 F.3d at 455-56.        A sentence within


                                  - 6 -
a properly calculated guideline range is presumptively reasonable.

Id. at 457; see Rita v. United States, 127 S. Ct. 2456 (2007)

(upholding presumption).             This presumption can be rebutted only by

showing the sentence is unreasonable when measured against the

§ 3553(a) factors.             United States v. Montes-Pineda, 445 F.3d 375,

379 (4th Cir. 2006), cert. denied, 127 S. Ct. 3044 (2007).

             While        a    district     court   must     consider      the   various

§ 3553(a) factors and explain its sentence, it need not explicitly

reference      §    3553       or   discuss    every       factor    on    the   record,

particularly when the court imposes a sentence within the guideline

range.    United States v. Johnson, 445 F.3d 339, 345 (4th Cir.

2006).    One reason that a sentence within an advisory range is

presumptively reasonable is that the most salient § 3553(a) factors

are already incorporated into guideline determinations.                          Id. at

342-43; see also Rita, 127 S. Ct. at 2467 ("where judge and

Commission         both       determine     that"     a    guideline      sentence   is

appropriate,        "that       sentence     likely       reflects   the    §    3553(a)

factors").     A district court’s consideration of pertinent factors

also may be implicit in its ultimate ruling.                   See United States v.

Johnson, 138 F.3d 115, 119 (4th Cir. 1998); United States v. Davis,

53 F.3d 638, 642 (4th Cir. 1995). The district court’s explanation

should provide some indication that it considered the § 3553(a)

factors   as       to   the     defendant     and   the    potentially      meritorious




                                            - 7 -
arguments raised by the parties at sentencing.               Montes-Pineda, 445

F.3d at 380.

            Several     of    the    alleged        errors   with      regard     to

reasonableness advanced by Veal relate to the district court’s

determination of relevant conduct. We find no error with regard to

the relevant conduct determination in Veal’s resentencing.                      Veal

did not allege any specific error in the drug weight findings or

calculations, or offer any evidence to show that the weight of the

drugs attributed to him was incorrect.               He has neither shown the

district court clearly erred by adopting the factual findings

regarding relevant conduct in the presentence report, nor that the

court erred in calculating the guideline range.                    Although Veal

requested that he be resentenced based only on the amount of drugs

to which he pled guilty, 3.06 grams of crack cocaine, which was the

total amount of drugs specified on the face of the indictment, and

objected to the information provided by other witnesses on the

ground of hearsay, there was no error in the district court’s

determination of relevant conduct, as discussed above.

            Nor was there any Sixth Amendment error based on Apprendi

v.   New   Jersey,    530    U.S.   466   (2000),     Booker,     or   Blakely    v.

Washington,    542    U.S.    296   (2004),    as    we   found   previously     in

reviewing Veal’s direct appeal. See Boeckenhaupt v. United States,

537 F.2d 1182, 1183 (4th Cir. 1976).            His complaint regarding the

application of the enhancement for obstruction of justice likewise


                                      - 8 -
previously was litigated in his direct appeal, and we will not

revisit the challenge here. Id. Veal’s assertion that because the

obstruction of justice enhancement was improper, he should have

been given a two point reduction for acceptance of responsibility

likewise fails, in light of our previous determination that there

was no error in the district court’s application of the obstruction

of justice enhancement.

           Veal also challenges the reasonableness of his sentence

under Kimbrough v. United States, 128 S. Ct. 558 (2007).                Veal

raised the issue of the 100:1 disparity between cocaine base and

powder cocaine in his sentencing statement, and requested at

sentencing that the district court lower his base offense level by

two levels such that his sentence would not be disproportionate to

similarly-situated defendants.        At the time of Veal’s sentencing,

the   district   court   did   not    have   the   benefit   of   Kimbrough.5

Moreover, the district court indicated at sentencing that, “[i]f

. . . the Sentencing Commission makes [the amendment to the

Guidelines lowering all base offense levels for crack offenders by

two] retroactive far enough back to include [Veal’s] sentence, then

. . . the new Guideline would be appropriate.”          Hence, to give the




      5
      The Supreme Court, in Kimbrough, held that under the advisory
Guidelines, the sentencing court may conclude in a particular case
that a sentence based on the one hundred—to—one disparity is too
great, and may consequently impose a variance sentence below the
Guideline. Kimbrough, 128 S. Ct. at 575.

                                     - 9 -
district court the opportunity to reconsider Veal’s sentence in

light of Kimbrough, resentencing is appropriate.6

            Finally, Veal’s remaining claims, based on the district

court’s application of the § 3553(a) factors, are without merit.

The district court indicated that it had considered the applicable

advisory Guidelines, as well as all of the factors set forth in

§   3553(a).      The   record    demonstrates       that   the   district   court

properly       considered      these      factors,     noting     its    specific

consideration of Veal’s long, unabated criminal history, the danger

to the community caused by his drug trafficking, and his lack of

amenability to the law and societal controls. No error is evident.

            Accordingly, we affirm in part and vacate in part Veal’s

amended    sentence,     and     remand    for    resentencing     in   light   of

Kimbrough.      We deny Veal’s motion to file a pro se supplemental

brief.    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 IN PART,
                                                VACATED IN PART, AND REMANDED




      6
      There is, of course, no criticism of the district court,
which properly applied the relevant law at the time of sentencing.

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