                                                   Filed:   July 14, 2008

                   UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 07-4628
                         (3:05-cr-00216-RJC)



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.


QUALO MARTEZ LOWERY,

                 Defendant - Appellant.



                               O R D E R



     The court amends its opinion filed July 1, 2008, as follows:

     On   page   17,   first   full   paragraph,    line    3,   the   word

“calendaring” is corrected to read “calculating.”



                                           For the Court - By Direction



                                              /s/ Patricia S. Connor
                                                      Clerk
                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4628



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.


QUALO MARTEZ LOWERY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00216-RJC)


Argued:   March 18, 2008                      Decided:   July 1, 2008


Before WILKINSON and MOTZ, Circuit Judges, and William L. OSTEEN,
Jr., United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Frank Alan Abrams, Arden, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                                          I

     Appellant Qualo Martez Lowery was indicted by a federal grand

jury in the Western District of North Carolina and charged in three

separate counts relating to drug possession and distribution.                        In

Count One, he was charged with a violation of 21 U.S.C. § 846,

conspiracy    to      possess     with    intent          to   distribute       cocaine

hydrochloride      and   cocaine   base       from   January       2001,   up   to   and

including May 24, 2005. Appellant was also charged with two counts

of a violation of 21 U.S.C. § 841(a)(1), one for possession with

intent to distribute cocaine on September 10, 2002 (Count Three),

and the second for possession with intent to distribute cocaine

hydrochloride on December 12, 2002 (Count Four).                      Shortly after

indictment the United States filed an Information pursuant to 21

U.S.C. § 851, giving Appellant notice that Appellant’s previous

conviction for a felony drug offense would be used to increase the

applicable statutory penalties.

     On May 10, 2006, Appellant’s case was tried before a jury.

The jury found Appellant guilty on all three counts.                       On May 15,

2007, Judge Conrad presided over Defendant’s sentencing hearing.

The court found that certain factors used to enhance Appellant’s

guideline    range,      namely   the    amount      of    drugs    attributable      to

Appellant and Appellant’s prior convictions, were justified by the




                                          2
evidence presented.            Accordingly, Appellant was sentenced to 360

months on each of three counts to be served concurrently.



                                            II

       Appellant’s case arose from an alleged conspiracy between

Appellant and other individuals to possess with the intent to

distribute cocaine hydrochloride and cocaine base, as well as two

other substantive offenses in which Appellant was involved in the

sale of cocaine.          In preparation for the trial, the United States

arranged to have a number of witnesses testify against Appellant

regarding        his    drug   sales.       Some   of   the    witnesses     included

individuals who claimed they had long-standing and ongoing drug

conspirator relationships with Appellant.

       The United States filed a Notice of Intent to Use 404(b)

Evidence prior to trial.             Appellant objected.        The district court

held   a   pretrial        hearing    regarding     the      admissibility    of   the

Government’s 404(b) evidence.                The court ruled that Appellant’s

long-standing          relationships       and   transactions       with   other   drug

conspirators, though periods of it predated the dates of the

conspiracy        alleged      in    the    indictment,       were    admissible    as

substantive evidence of the existence of the conspiracy.                       To the

extent     the    other     404(b)    testimony     described        individuals    who

maintained       a     relationship     independent     of    the    conspiracy,    the




                                             3
district court allowed the evidence as proof of motive, intent,

knowledge, common scheme or plan, and absence of mistake.

     At the hearing, the district court heard Appellant’s objection

to the admission of testimony and a memorandum created by Officer

Douglas   Moore   describing   the   September   10,   2002,   undercover

transaction with Appellant, the offense charged in Count Three of

the indictment.    Officer Moore testified that, while acting in an

undercover capacity, he purchased approximately 33 grams of cocaine

for $1,200 on September 10, 2002, from Appellant.         Officer Moore

stated that he had written a report of that incident, but the

report was incomplete because he lost his original case notes

describing the transaction. Despite the loss of his notes, Officer

Moore maintained that his account of the incident was completely

accurate.

     Around April 2006 and prior to trial, the Assistant U.S.

Attorney instructed Officer Moore to prepare a new memorandum (“the

Statement”) describing the loss of the report as well as all of the

factual information he could recall about the September 10, 2002,

transaction.      Officer Moore prepared the Statement wherein he

incorrectly recorded the date of the transaction with Appellant as

September 19, 2002.1   The Statement was provided to defense counsel



     1
      Officer Moore’s memorandum contains two errors. Initially,
he incorrectly typed September 19, 2002, as the date of the
September 10, 2002, transaction. Later, in the same memorandum,
Officer Moore recorded the date as September 19, 2003.

                                     4
as Brady material approximately two to three weeks prior to trial.2

After hearing the arguments of counsel, the district court denied

Appellant’s motion to exclude Officer Moore’s testimony, holding

that the initial discovery materials relied upon by Officer Moore

to compose the Statement had been provided to defense counsel prior

to January 2006, and later supplemented with the Statement.          The

district court held that the Government could present Officer

Moore’s testimony at trial and that defense counsel could address

the issues concerning Officer Moore’s error on cross-examination.

     Appellant proceeded to trial on May 10, 2006, on his plea of

not guilty to all counts.      The Government’s first witness was

Officer Moore, who described the September 10, 2002, undercover

narcotics   purchase   from   Appellant.       The   Government   called

Appellant’s uncle, Lonnie Brown, as the second witness.       Mr. Brown

testified that Appellant had been involved in the drug business

since the Appellant was 16 years old.      He further testified that he

and Appellant Lowery had been working together to sell drugs,

including crack cocaine, since 1993.       According to Mr. Brown, he

would get the drugs, “cut it up,” and then he and Mr. Lowery would

sell the drugs.




     2
      Though the recreated memorandum was not supplied to defense
counsel until a few weeks before trial, defense counsel had already
obtained discovery materials which Officer Moore used to write the
Statement.

                                  5
      In 1998, Mr. Brown was arrested for selling drugs and went to

prison.   Consequently, his drug-selling partnership with Appellant

ceased.   Once Mr. Brown was released from prison, however, their

partnership resumed.          Mr. Brown stated that in 2002, he and

Appellant would get powder cocaine, he would cook it into crack

cocaine, and they would sell it.         According to Mr. Brown, he and

Appellant sold approximately 10 to 15 kilograms of crack cocaine

between 2002 and 2004.

      Other witnesses were called to testify by the Government

regarding Appellant’s drug activity.        After the Government rested

its   case,   the   defense   introduced   evidence    in   the   form    of   a

stipulation to records establishing that Appellant attended truck

driving school in May 2004.        Appellant did not testify.            At the

completion of trial, the jury convicted Appellant of all three

counts.

      Following     Appellant’s    conviction,   the    probation        office

prepared a presentence report.       Based on Appellant’s relevant drug

quantities presented at trial (more than 10 kilograms of cocaine

base) and classification as a career offender, his resulting

offense level was 38 with a criminal history category of VI.

Appellant objected to the calculation by the probation officer,

arguing that because the indictment charged five kilograms of

powder cocaine and 50 grams of crack cocaine that the relevant drug

quantity used to determine a guideline range was limited to those


                                     6
amounts. Appellant also objected to all the facts contained in the

presentence report that were not found by the jury, including proof

of his prior convictions.

     The district court held that the presentence report properly

calculated the advisory sentencing guideline range with an offense

level of 38 and a criminal history category of VI.            The district

court imposed a sentence of 360 months on each count, to be served

concurrently, followed by a period of supervised release of 10

years.    From that judgment, Appellant submitted a timely notice of

appeal.     After the court entered a final judgment, Appellant

appealed.    The case is now before this court on Appellant’s appeal

of his conviction and sentence.      For the reasons stated below, we

affirm both.

     In his appeal, Appellant raises four issues. First, Appellant

contends that the failure to provide timely discovery of Officer

Moore’s notes constitutes a violation of the rule established in

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).               Second,

Appellant contends that the district court erred in admitting the

testimony of Mr. Brown and others as Rule 404(b) evidence.            Third,

Appellant contends that the district court erred in determining the

validity of prior convictions and the relevant drug amounts used

for purposes of sentencing.      Fourth, Appellant makes certain vague

and unsubstantiated claims that the trial judge had a conflict

resulting    from   his   participation   as   a   U.S.   Attorney   in   the


                                    7
prosecution of Mr. Brown.    We address each of these arguments in

turn.



                                 III

        Appellant claims that the Government violated its duty to

provide timely disclosure of all the facts relating to Officer

Moore’s investigation and undercover transaction with Appellant.

Appellant further argues that the late provision of discovery with

a “defective” transaction date of September 19, 2002, deprived him

of a fair trial.    As a result, Appellant argues this count of his

indictment should have been dismissed.    We disagree.

        Though Appellant objected to the use of Officer Moore’s

testimony during trial, he based his objection on the reliability

of the testimony and not on a failure to disclose in accordance

with Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).    When

a party raises an issue for the first time on appeal, we review the

issue under the plain error standard.    See United States v. Higgs,

353 F.3d 281, 309 (4th Cir. 2003); Fed. R. Crim. P. 52(b).    We may

correct a claimed error if (1) error exists, (2) the error is

plain, and (3) the plain error affected a substantial right.

United States v. Olano, 507 U.S. 725, 733-34, 113 S. Ct. 1770,

1777-78 (1993).    The decision to correct the error is left “within

the sound discretion of the court of appeals, and the court should

not exercise that discretion unless the error seriously affects the


                                  8
fairness, integrity or public reputation of judicial proceedings.”

Id. at 732, 113 S. Ct. at 1776 (citing United States v. Young, 470

U.S. 1, 15, 105 S. Ct. 1038 (1985)) (internal quotations omitted).

      In support of his claim, Appellant invokes Brady v. Maryland

to justify reversing his conviction for the September 10, 2002,

drug transaction based on the Government’s failure to turn over

exculpatory evidence. In Brady v. Maryland, the Supreme Court held

that “the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.”       Id., 373 U.S. at 87, 83 S.

Ct. at 1196-97.   Since its decision in Brady v. Maryland, the Court

has added a corollary to its previous holding, stating that “the

duty to disclose such evidence is applicable even though there has

been no request by the accused, . . . and that the duty encompasses

impeachment evidence as well as exculpatory evidence.”            Strickler

v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948 (1999)

(citations omitted).      The evidence must be material, however,

meaning that a court is justified in setting aside a conviction

only if “there exists a ‘reasonable probability’ that had the

evidence   been   disclosed   the   result   at   trial   would   have   been

different.”   Wood v. Bartholomew, 516 U.S. 1, 5, 116 S. Ct. 7, 10

(1995) (citations omitted).




                                     9
     Though there is not a hard and fast deadline for disclosing

Brady material, we have previously stated that “[n]o due process

violation occurs as long as Brady material is disclosed to a

defendant in time for its effective use at trial.”         U.S. v. Smith

Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985) (citation

omitted).    However, the time necessary for effective use at trial

may even include disclosure at trial itself.        Id. (“The disclosure

of this exculpatory evidence, at trial, does not rise to the level

of a constitutional violation.”).

     Appellant received Officer Moore’s supplemental statement

before trial began on May 10, 2006, as he was in possession of the

document about the same time as the Government.        The fact that the

Statement was not delivered as part of the Government’s initial

discovery materials is immaterial because the document did not

exist until approximately a month before trial. The memorandum was

created just prior to trial when the Assistant U.S. Attorney

learned that a more detailed report of the September 10, 2002,

transaction might exist in addition to the evidence vouchers and

laboratory    report   already   in    possession    of   both   parties.

Accordingly, the Assistant U.S. Attorney questioned Officer Moore

and discovered that the more detailed report containing Officer

Moore’s field notes had been lost.        Upon realizing that Officer

Moore had an independent recollection of the events, the attorney

directed Officer Moore to prepare the Statement describing the


                                  10
entire incident, including the loss of the original case notes.

Officer Moore complied and completed the memorandum, which is dated

April    13,   2006.3     The   Government   disclosed   the   Statement   to

Appellant’s counsel approximately one week after its completion,

giving Appellant two to three weeks to review the document prior to

trial. Such time was sufficient for Appellant to fully analyze the

Statement before trial began, as the Statement was less than one

page in length.

     Appellant’s        contention   that    Officer   Moore’s   memorandum

contained new Brady material is also unavailing. Appellant and his

counsel were clearly aware of all the relevant facts relating to

the discovery material for the September 10, 2002, transaction

prior to trial.         When the Government disclosed the Statement,

Appellant already possessed evidence vouchers and a laboratory

report supporting Officer Moore’s account of the transaction. Even

assuming that the Statement contained Brady material, Appellant’s

counsel was able to conduct a thorough cross-examination of Officer

Moore about the conflicting dates and other inaccuracies in the

Statement.4     Thus, any potential Brady material was provided to


     3
      Apparently, Officer Moore’s recollection and the other
discovery material consistently reflect September 10, 2002, as the
date of the transaction with Appellant. No Brady material existed
prior to the preparation of the supplemental report containing the
wrong date.
     4
      The following exchange is an example of counsel’s cross-
examination concerning the Statement:


                                      11
Appellant in time for him to effectively prepare for trial.           We

therefore find there was no Brady violation as a result of the

timeliness of the disclosure of Officer Moore’s Statement.

     Appellant further argues that the district court committed

error in refusing to provide the written copy of Officer Moore’s

Statement to the jury when the jury requested a copy of the

Statement during deliberations.    We review a court’s decision to

admit or exclude evidence for abuse of discretion.         See United

States v. Cole, 293 F.3d 153, 162 (4th Cir. 2002).      In the case at

bar, the district court refused to provide the jury with a copy of

the Statement because it had not been admitted in evidence.         (J.A.

256.)   In fact, Appellant’s counsel concurred with that decision.

A jury is permitted to consider only those exhibits which have been

admitted as evidence in a case.        See United States v. Lentz, 383

F.3d 191, 213 (4th Cir. 2004) (“[O]nly admitted evidence goes to



     Q: Do you remember now if you put in this memoranda you
     arrested Mr. Lowery?

     A: It says he was arrested sir.         It doesn’t say – I
     didn’t arrest him.

     Q: And also has the incorrect date.       It says “September
     19th of 2003.”

     A: That is incorrect.

     Q: And he was not arrested.

     A: Not by me, no, sir.

(J.A. 92.)

                                  12
the jury at the conclusion of the trial.”). Accordingly, we affirm

the district court’s decision to exclude Officer Moore’s memorandum

from the jury.



                                          IV

     Appellant contends that the district court erred in allowing

witnesses     to    provide       testimonial    evidence     of    Appellant’s

participation in drug transactions that occurred before the dates

contained in the indictment.              As mentioned above, we review a

court’s   decision     to   admit    or    exclude    evidence   for   abuse   of

discretion.        See Cole, 293 F.3d at 162.             A district court’s

decision to admit 404(b) evidence “will not be disturbed unless it

was arbitrary or irrational.”             United States v. Rawle, 845 F.2d

1244, 1247 (4th Cir. 1988) (citation omitted).

     In   this     case,    the   Government    developed     its   case   using

witnesses who testified as to Appellant’s drug activity prior to

the dates charged in the conspiracy and sought to introduce that

evidence under Rule 404(b) of the Federal Rules of Evidence.                Rule

404(b) provides that evidence of “other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show

action in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident . . . .”     Fed. R. Evid. 404(b).          Before admitting evidence


                                          13
of similar acts under Rule 404(b), the court must make a threshold

inquiry as to “whether that evidence is probative of a material

issue other than character.” Huddleston v. United States, 485 U.S.

681, 686, 108 S. Ct. 1496, 1499 (1988).          In making this inquiry, a

district court is “entitled to substantial deference, because a

district court is much closer than a court of appeals to the pulse

of the trial.”    United States v. Russell, 971 F.2d 1098, 1104 (4th

Cir. 1992) (citation and internal quotations omitted).                  As such,

its   “rulings   will    not   be   disturbed   absent   a   clear   abuse    of

discretion.”     Id. (citation omitted).

      The district court properly admitted the testimony of Lonnie

Brown and Michael Alexander with respect to the drug distributions

prior to the charged conspiracy period.           Mr. Brown described his

participation with Appellant in drug transactions beginning in the

early   1990’s   and    continuing    through   the   date   of   the    charged

conspiracy.      Mr. Alexander testified that he was a runner for

Appellant beginning in the late 1980’s or early 1990’s, and also

purchased cocaine from Appellant and delivered it to other addicts.

Mr. Alexander claimed that he continued his activity through the

time of the charged conspiracy.

      Appellant contends that the court erred in its threshold

inquiry in deciding whether to admit the evidence of Appellant’s

drug-related activity prior to the dates of the conspiracy because

the evidence “polluted this case” and “den[ied] the defendant


                                       14
[Appellant] a fair trial.”        (Appellant’s Br. 19.)      That evidence,

however, was relevant to explain how the illegal relationship

between the participants in the crime developed. See, e.g., United

States v. McMillon, 14 F.3d 948, 955 (4th Cir. 1994) (The court

admitted the testimony of witnesses whose “testimony was helpful in

providing the jury with an understanding of how they knew [the

defendant] and how it came about that they were trusted brokers or

other participants in her dealings.”).        The testimony of Brown and

Alexander was also relevant to the issues of Appellant’s knowledge

of the drug trade and intentional participation in the conspiracy.

See United States v. Sanchez, 118 F.3d 192, 195-96 (4th Cir. 1997)

(The court allowed evidence of prior criminal acts, reasoning that

the defendant’s prior dealings with the testifying witness “prove

his knowledge of the drug trade and suggest that he was an

intentional,     rather    than     unwitting,       participant     in    the

conspiracy.”).

     Evidence of a defendant’s involvement in drug transactions

prior to the dates charged in a conspiracy is also admissible as

substantive     evidence   of   a   defendant’s   guilt.       Courts     have

continually held that “the mere fact that the evidence involved

activities     occurring   before    the   charged    time   frame   of    the

conspiracy does not automatically transform that evidence into

‘other crimes’ evidence.”       United States v. Kennedy, 32 F.3d 876,

885 (4th Cir. 1994) (collecting cases).           “Evidence of uncharged


                                     15
conduct is not considered ‘other crimes’ evidence if it ‘arose out

of the same . . . series of transactions as the charged offense, .

. . or if it is necessary to complete the story of the crime (on)

trial.’”    Id. (citing United States v. Towne, 870 F.2d 880, 886 (2d

Cir. 1989)).       Accordingly, we hold there was no error in the

district court’s evidentiary rulings admitting the testimony of Mr.

Brown and Mr. Alexander relating to their drug transactions with

Appellant prior to the relevant dates of the conspiracy.



                                         V

     Appellant argues that the district court violated his rights

under the Sixth Amendment by imposing a sentence that exceeded the

maximum possible penalty allowable based on the findings by the

jury.      We   review   a   sentence    “under   a    deferential   abuse-of-

discretion standard,” regardless of whether a sentence imposed is

“inside, just outside, or significantly outside the Guidelines

range.”    Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 591

(2007).    Our “initial review is for significant procedural error.”

Id. at __, 128 S. Ct. at 597.           Then, we “consider the substantive

reasonableness of the sentence imposed.”              Id.

     The Supreme Court stated in United States v. Booker, 543 U.S.

220, 125 S. Ct. 738 (2005), that “the Sixth Amendment is violated

when a district court, acting pursuant to the Sentencing Reform Act

and the [Federal Sentencing] guidelines, imposes a sentence greater


                                        16
than the maximum authorized by the facts found by the jury alone.”

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (citing

Booker, 543 U.S. at 243, 125 S. Ct. at 756).   Thus, Booker requires

that the maximum penalty be established by the jury verdict.5

     Within the applicable maximum statutory penalty, a district

court must begin the process of determining a sentence by correctly

calculating the applicable Guidelines range.        Gall v. United

States, ___ U.S. ___, 128 S. Ct. 586, 596 (2007).    The applicable

Guideline range, when correctly calculated, is “the starting point

and the initial benchmark,” but it is “not the only consideration.”

Id. at __, 1128 S. Ct. at 596.   In fact, a district court “may not

presume that the Guidelines range is reasonable,” but instead is to

“make an individualized assessment based on the facts presented.”

Id. at __, 1128 S. Ct. at 596-97.     In doing so, a district court

“must giv[e] both parties an opportunity to argue for whatever

sentence they deem appropriate, . . . then consider all of the §

3553(a) factors to determine whether they support the sentence

requested by a party.”   Id. at __, 1128 S. Ct. at 596.   We defer to

the district court’s assessment of whether a sentence within the

Guidelines adequately serves sentencing objectives and whether

attempts to achieve uniformity across defendants convicted of



     5
      Booker’s holding also states that a statutory maximum penalty
may be established by Defendant’s admissions. United States v.
Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756 (2005).    That part
of the holding is not applicable in this case.

                                 17
similar crimes would work an injustice in a particular case.

Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558, 574-75

(2007).

   Appellant first objects to the district court’s calculation of

the statutory penalties.   In this case, Appellant was convicted of

conspiracy to possess with intent to distribute five kilograms or

more of cocaine hydrochloride and in excess of 50 grams of cocaine

base. The jury answered special interrogatories as to Count One as

follows:

           As to Count One, you find the defendant guilty.

          1A: If guilty, was 5 kilograms or more of a mixture
     and substance containing a detectable amount of cocaine
     reasonably foreseeable to Qualo Martez Lowery.       You
     answered “yes.”

          1C: If guilty, was 50 grams or more of a mixture and
     substance containing a detectible amount of cocaine base
     reasonably foreseeable to Qualo Lowery?     You answered
     “yes.”

(J.A. 257.)     The jury’s answer to the special interrogatories

established the application of a maximum statutory penalty for more

than five kilograms of cocaine hydrochloride and 50 grams of

cocaine base.     The maximum statutory penalty is life in prison.

See 21 U.S.C. §§ 851, 841(a)(1) and (b)(1)(A).     In fashioning a

sentence, the court was well within its discretion to make a

factual finding as to the relative drug amounts in determining a

sentence within the applicable statutory range established by the

jury’s verdict.


                                 18
     Appellant also challenges the use of his prior convictions in

determining his sentence, as those were not proven to a jury. This

argument has been rejected by the Supreme Court in Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).            In Apprendi, the

Court stated that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.”       Id. at 490, 120 S. Ct. at 2362-63.        The trial

court is therefore authorized to make factual findings regarding a

defendant’s prior convictions and criminal history.               See United

States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005); United States v.

Cheek, 415 F.3d 349, 354 (4th Cir. 2005).

     In   this   case,    the   Government   filed   a   notice    of   prior

convictions pursuant to 21 U.S.C. § 851, designating Appellant’s

previous felony convictions for possession with intent to sell and

deliver cocaine (1994), possession with intent to sell and deliver

cocaine (1996), and assault with a deadly weapon inflicting serious

injury (1999).6 This subjected Appellant to statutory penalties of

not less than 20 years or more than life in prison.         See 21 U.S.C.

§ 841(b)(1)(A).

     At sentencing, Appellant objected to the use of the 1994

conviction for possession with intent to sell and deliver cocaine



     6
      The previous convictions were valid to consider because
Appellant was older than 18 at the time of the prior convictions.

                                    19
as an enhancement pursuant to 18 U.S.C. § 851.                 He also objected to

his classification as a career offender which was based on his two

previous felony convictions.                The Government presented evidence

through fingerprint examination to prove all three of Appellant’s

prior convictions, and Appellant has not challenged this evidence

on    appeal.      Instead,     Appellant’s        challenge    is    simply    to   the

district court’s authority to find these sentencing facts and

guideline       ranges.     Once      the   jury    establishes      the     applicable

statutory maximum penalty with its findings, the court acts as the

finder of fact for purposes of guideline calculation within the

statutory maximum.           See Hughes, 401 F.3d at 546.                    Here, the

district    court     was     well     within      its    authority     to     consider

Appellant’s prior convictions and find that Appellant was a career

offender when calculating Appellant’s proper guideline.

       Additionally,      the    district        court    properly     determined     a

reasonable sentence.            Once the court calculated the applicable

statutory penalty and the Guideline range, the court, as required

by Gall and Kimbrough, treated the Guidelines as advisory and heard

arguments on the appropriate sentence.                   (J.A. 336-434.)       Counsel

for    Defendant    argued      for    a    sentence     at   the    low-end    of   the

applicable advisory Guideline range. (J.A. 337.)                      The court then

stated its reasoning in determining a sentence that was “sufficient

but not greater than necessary to accomplish the sentencing and

objectives of punishments . . . .”                  (J.A. 344-46.)         Because the


                                            20
district court imposed a sentence in accordance with the procedure

as established by Booker, Gall, and Kimbrough, we find no Sixth

Amendment violation or other procedural error, and we affirm the

judgment of the district court.7



                                VI

     For the reasons set forth in this opinion, the judgment of the

district court is

                                                         AFFIRMED.




     7
      At sentencing, Appellant, individually and without support of
counsel, claimed for the first time that the trial judge, while
serving as U. S. Attorney, had participated in immunizing or
prosecuting Lonnie Brown, one of the witnesses called by the
Government to testify against Appellant. Appellant first made the
unsubstantiated allegation of a conflict at sentencing on May 15,
2007, during a colloquy between Appellant and the district court.
Appellant’s trial counsel did not join or argue Appellant’s
allegation. We note that Appellant’s brief was filed in this court
on September 26, 2007, by new appellate counsel. Like Appellant’s
allegation in district court, no evidence or specific facts were
presented in support of Appellant’s allegation in the brief before
this court. In fact, the issue was raised at best as an aside in
the discussion of an entirely separate issue and not in a manner
conducive to any resolution of the claim. Given that Appellant has
never raised this issue in a timely, proper, or non-conclusory
fashion, we reject his claim.

                                21
