                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 13-4769


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

TROY OLIVER,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.     Margaret B. Seymour, Senior
District Judge. (5:12-cr-00808-MBS-8)


Submitted:   May 27, 2014                      Decided:    June 20, 2014


Before GREGORY    and   DIAZ,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mario A. Pacella, STROM LAW FIRM, L.L.C., Columbia, South
Carolina, for Appellant.    John David Rowell, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Troy Oliver appeals from his conviction and 120-month

sentence imposed following his guilty plea pursuant to a plea

agreement to two counts of possession with intent to distribute

a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(D) (2012).        Oliver’s counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal, but questioning whether

the district court erred in crediting the sentencing testimony

of witness George Torres.         Oliver has filed pro se supplemental

briefs in which he asserts that his guilty plea was not knowing

and voluntary, challenges the district court’s calculation of

the drug quantity attributable to him under the U.S. Sentencing

Guidelines Manual (“U.S.S.G.”) (2012), challenges the district

court’s   denial   of    an   offense-level       adjustment    under    U.S.S.G.

§ 3E1.1 for acceptance of responsibility, and argues that trial

counsel   rendered       ineffective       assistance.          The   government

declined to file a brief.        We affirm.

           Oliver contends that his guilty plea was not knowing

and voluntary because the district court failed to ensure that

he   understood    the   elements    of     the   crimes   to    which    he   was

pleading guilty.         Because Oliver never moved in the district

court to withdraw his guilty plea on this basis, we review this

claim for plain error only.         United States v. Martinez, 277 F.3d

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517, 524-27 (4th Cir. 2002).           Federal Rule of Criminal Procedure

11(b)(1)(G) requires the district court to inform the defendant

of   and   ensure   the   defendant     understands         the    nature      of     each

charge to which he is pleading guilty.                      To comply with this

requirement,    the   district      court    must     explain      and       ensure    the

defendant    understands       what    the        government       must       prove     to

establish guilt.      See United States v. Carter, 662 F.2d 274, 276

(4th Cir. 1981).      Failure to explain the elements or nature of

the offense during the Rule 11 hearing is error per se.                        Id.

            After review of the record, we discern no plain error

by the district court.            At the Rule 11 hearing, the district

court orally informed Oliver of the elements of the offenses to

which he was pleading guilty and elicited that Oliver understood

the crimes with which he was charged and what the government

would have to prove to establish his guilt.                      The elements were

also set forth in the written plea agreement that Oliver signed

and stated under oath that he understood.                   Cf. United States v.

Goins, 51 F.3d 400, 402-04 (4th Cir. 1995).

            Next, both counsel and Oliver challenge the district

court’s    calculation    of   the    relevant       drug    quantity         under    the

Sentencing    Guidelines.         Relying    in    part     on    the    testimony      at

sentencing by witness George Torres, the district court held

Oliver     accountable      for      4,053.75       kilograms           of    marijuana

equivalency, resulting in a base offense level of thirty-four.

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On   appeal,     counsel      argues   that       the    district     court   erred       in

crediting Torres’s testimony because the testimony was impeached

on cross-examination.              Even if counsel is correct, however, it

was the province of the district court as the finder of fact to

determine the credibility of Torres’s testimony and the weight

to afford it, including by considering any inconsistencies in

the testimony.        See United States v. Dinkins, 691 F.3d 358, 387

(4th Cir. 2012) (noting that “it is the [fact finder’s] province

to weigh the credibility of the witnesses, and to resolve any

conflicts      in   the    evidence”),       cert.       denied,     133   S. Ct.     1278

(2013).    Accordingly, this claim is without merit.

            Oliver        argues    that    the    district     court      violated    his

Sixth Amendment right to a jury trial when it calculated the

relevant    drug     quantity       under    the     Guidelines       without    a    jury

finding beyond a reasonable doubt that the facts supported that

calculation.        Because Oliver did not raise this objection in the

district court, our review is for plain error.                        United States v.

Carthorne, 726 F.3d 503, 509 (4th Cir. 2013), cert. denied, 134

S. Ct. 1326 (2014).

            We      discern    no    plain       error   by    the    district      court.

Oliver’s counts of conviction carried a statutory maximum prison

term of sixty months per count.                   21 U.S.C. § 841(b)(1)(D).            The

district court’s application of the base offense level for the

drug   quantity      it    attributed       to    Oliver      did    not   result    in    a

                                             4
sentence greater than that authorized by Oliver’s guilty plea in

this case.      Accordingly, the district court did not violate the

Sixth Amendment in making the calculation.                      See United States v.

Booker, 543 U.S. 220, 232-44 (2005) (holding that judge-found

sentence enhancements mandatorily imposed under the Guidelines

that result in a sentence greater than that authorized by the

jury    verdict    or    facts     admitted      by     the   defendant    violate      the

Sixth    Amendment’s      guarantee     of       the    right   to   trial   by    jury);

United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)

(“The point is . . . that the Guidelines must be advisory, not

that judges may find no facts”).

            Oliver also questions whether the district court erred

in denying him a reduction in his offense level under U.S.S.G.

§ 3E1.1 for acceptance of responsibility.                        As Oliver did not

object to the district court’s decision to deny him a reduction

under this provision, we review this claim for plain error as

well.    Carthorne, 726 F.3d at 509.                  We discern no plain error by

the district court.

            A     reduction        in   a     defendant’s        offense     level       is

warranted       if       he       clearly        demonstrates          acceptance       of

responsibility for his offenses.                       U.S.S.G. § 3E1.1.          Such an

adjustment        does not result automatically from the entry of a

guilty     plea;        rather,     “the      defendant         must     prove     by    a

preponderance of the evidence that he has clearly recognized and

                                             5
affirmatively accepted personal responsibility for his criminal

conduct.”       United States v. May, 359 F.3d 683, 693 (4th Cir.

2004)    (internal         quotation      marks       omitted).         A   defendant    who

“falsely denies, or frivolously contests, relevant conduct that

the [district] court determines to be true has acted in a manner

inconsistent         with    acceptance      of        responsibility.”           U.S.S.G.

§ 3E1.1 cmt. n.1(A).             We conclude after review of the record

that the district court’s decision to deny Oliver a reduction

under § 3E1.1 for acceptance of responsibility is supported by

Oliver’s false denial at sentencing of relevant conduct.

              Finally, Oliver contends that trial counsel rendered

ineffective assistance for not advising him that he could face

the statutory maximum sentence of sixty months’ imprisonment on

each    of    the    counts    to    which       he    pled    guilty       and   that    the

sentences      for    those     counts      could       run    consecutively       to    one

another.        After       review   of     the    record,         we   find   this     claim

inappropriate        for    resolution      on    direct       appeal.         Because   the

record       does    not     conclusively         establish         ineffectiveness       of

counsel, Oliver must assert such a claim, if at all, in a motion

pursuant to 28 U.S.C § 2255 (2012).                     United States v. King, 119

F.3d 290, 295 (4th Cir. 1997).

              In     accordance      with    Anders,          we    have    reviewed     the

remainder of the record and have found no meritorious issues for

appeal.       Accordingly, we affirm the district court’s judgment.

                                             6
This court requires that counsel inform Oliver, in writing, of

the right to petition the Supreme Court of the United States for

further review.        If Oliver requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.    Counsel’s motion must state that a copy thereof

was served on Oliver.

            We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.



                                                                     AFFIRMED




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