                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4750


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRY WAINWRIGHT MITCHELL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-00501-JFA-21)


Submitted:   August 29, 2012                 Decided:   August 31, 2012


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant.     William N. Nettles, United States
Attorney, Stacey D. Haynes, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Terry Wainwright Mitchell was convicted by a jury of

conspiracy to possess with intent to distribute and distribute

five kilograms or more of powder cocaine and fifty grams or more

of cocaine base (crack), 21 U.S.C. § 846 (2006) (Count 1), and

three counts of using a telephone to facilitate a felony (Counts

60-62), 21 U.S.C. § 843(b) (2006).                 The verdict form included a

special    interrogatory         which    required     the    jury    to    decide       the

quantity     of    crack       and    cocaine   specifically         attributable         to

Mitchell; the jury found that Mitchell was responsible for the

charged amounts.

            In the presentence report, the probation officer noted

the jury’s finding that fifty grams of crack and five kilograms

of cocaine were reasonably foreseeable to Mitchell, and based

the offense calculation on those drug amounts.                             At the same

time, the probation officer calculated a lower quantity based on

his analysis of the trial testimony, which excluded certain drug

amounts to avoid double counting.                   At the sentencing hearing,

acting     pro     se,       Mitchell    challenged      the    amount       of        drugs

attributed to him for Guidelines purposes.                     The district court

decided that it was             bound to accept the jury’s finding of drug

quantities        on    the    special    verdict      form    and    overruled         his

objection.             The    court   adopted    the    recommendation            in     the

presentence        report      and    determined     that     Mitchell’s      advisory

                                            2
Guidelines         range    was       135-168      months.        The    court      sentenced

Mitchell to a term of 152 months imprisonment.                           Mitchell appeals

his sentence, arguing that the district court erred in failing

to make an individualized determination of the quantity of drugs

attributable to him for Guidelines purposes.                        We affirm.

               The district court’s decision that it was constrained

to use the drug amounts from the verdict form, and lacked the

authority      to    make       an    independent        determination        of   Mitchell’s

base       offense      level    under      U.S.      Sentencing       Guidelines      Manual

§ 2D1.1 (2010), is a legal determination; thus, we review it de

novo. *      United States v. Davenport, 445 F.3d 366, 370 (4th Cir.

2006).       Because the jury found that fifty grams of crack or more

and    five    kilograms         of    cocaine      or    more   were    attributable     to

Mitchell, his statutory sentencing range was ten years to life

under § 841(b)(1)(A).                 United States v. Collins, 415 F.3d 304,

313 (4th Cir. 2005); United States v. Promise, 255 F.3d 150, 156

(4th Cir. 2001).

               However,      “beyond        establishing         the    maximum     sentence

that       could   be    imposed       on   [the      defendant],       the   jury’s   drug-

quantity       determination          placed     no      restraints     on    the    district

court’s authority to find facts relevant to sentencing.”                               United


       *
       Because at sentencing Mitchell contested the quantity of
drugs attributed to him, he preserved the issue for review.



                                                3
States v. Young, 609 F.3d 348, 357 (4th Cir. 2010); see also

United States v. Brooks, 524 F.3d 549, 560 n.20 (4th Cir. 2008)

(“sentencing court is free to calculate the advisory Guidelines

range    using    facts     that    it    finds    by     a    preponderance      of    the

evidence, including individualized drug quantities, . . . within

the confines of the applicable statutory range”).                          The current

sentencing process requires the district court to “begin all

sentencing proceedings by correctly calculating the applicable

Guidelines range.”          Gall v. United States, 552 U.S. 38, 49-50

(2007).      To    do   so,   “the       district    court       must    make   relevant

factual findings based on the court’s view of the preponderance

of the evidence.”         Young, 609 F.3d at 357.

            Mitchell argues that the district court should have

adopted    the    probation        officer’s      lower       estimate    of    the    drug

quantity attributable to him.                   Using the drug quantities from

the     jury’s    verdict     form,      the     district        court   calculated      a

Guidelines range of 135-168 months.                      Mitchell assumes that the

court could have imposed a sentence as low as 120 months, the

statutory minimum.

            However, in fact, the district court was not free to

attribute a lesser quantity of crack and cocaine to Mitchell for

Guidelines       purposes     than       the      jury     did     for    purposes       of

determining the statutory sentencing range.                        A finding of less

than fifty grams of crack or less than five kilograms of cocaine

                                            4
would     have     violated      the    non-contradiction       principle       which

prohibits        the   district        court     from    finding   facts      by     a

preponderance of the evidence that contravene the jury’s finding

beyond a reasonable doubt.             See United States v. Curry, 461 F.3d

452, 460-61 (4th Cir. 2006) (vacating variance sentence based on

finding    counter      to     evidence    and     verdict);   United    States v.

Washburn, 444 F.3d 1007, 1014 (8th Cir. 2006) (loss amount in

special     verdict      not     disprovable       by    preponderance     of      the

evidence); United States v. Campos, 362 F.3d 1013, 1015-16 (8th

Cir. 2004) (vacating sentence where district court found lesser

amount of drugs than jury’s verdict).                    Therefore, the district

court did not err in adopting the drug quantity determined by

the jury.

            We therefore affirm the district court’s judgment.                     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




                                           5
