                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4332


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LARRY SELLERS, a/k/a L,

                Defendant - Appellant.



                              No. 09-4335


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BRANDON PUGH,

                Defendant - Appellant.



Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. John Preston Bailey,
Chief District Judge.   (1:08-cr-00052-JPB-JSK-1; 1:08-cr-00052-
JPB-JSK-3)


Submitted:   April 12, 2010                 Decided:   June 10, 2010


Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.


Pamela R. Folickman, THE LAW OFFICE OF PAMELA R. FOLICKMAN,
PLLC, Fairmont, West Virginia; Joshua P. Sturm, LAW OFFICE OF
JOSHUA P. STURM, Ripley, West Virginia, for Appellants.  Betsy
C. Jividen, Acting United States Attorney, John C. Parr,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Following a two-day bench trial, the district court

convicted       Larry    Sellers       and   Brandon       Pugh      of     conspiracy      to

distribute more than five grams of cocaine base, in violation of

21 U.S.C.A. §§ 841(b)(1)(B), 846 (West 1999 & Supp. 2009) (Count

One);    and    aiding    and    abetting        the   possession         with    intent    to

distribute more than five grams of cocaine base, in violation of

21 U.S.C.A. §§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2009)

(Count      Seven).      Sellers       was   also      convicted       of    maintaining     a

drug-involved premises, in violation of 21 U.S.C.A. § 856(a)(2)

(West Supp. 2009) (Count Eight).                       Sellers received concurrent

sentences of 292 months on Counts One and Seven and 240 months

on    Count    Eight.      Pugh    received         concurrent         sentences     of    144

months on Counts One and Seven.               Finding no error, we affirm.

               On appeal, both Defendants challenge the sufficiency

of    the    evidence    and     the    reasonableness          of     their     sentences.

Sellers       also    challenges       the   district      court’s          denial   of    his

motion to depose Ashley Adkins, a co-conspirator who pleaded

guilty and testified for the Government at trial.

               The    criminal     charges        center    around          Sellers’      drug

trafficking in Morgantown, West Virginia.                       Between February and

May    of   2008,     Sellers    supplied        Adkins    with        crack     cocaine    on

multiple       occasions.          Adkins        acted     as      a      runner     between

individuals she knew who wanted crack cocaine, and her source,

                                             3
Sellers.      According to Adkins, she would call Sellers for crack

and he would either come to her with the crack or she would hire

a cab or have another crack user drive her to Sellers’ apartment

complex in Morgantown.             Adkins would buy between $50 and $200

worth of crack from Sellers, while the taxi driver or customer

waited in a car.           During the course of the conspiracy, Adkins

made purchases for herself and several customers.

              One of Adkins’ customers was a confidential informant

who made several recorded buys from Adkins.                        One of those buys

resulted    in     Adkins’   arrest.         On    May   8,    2008,     Adkins     called

Sellers to set up a purchase.                     Sellers, however, was out of

town, and arranged to have his friend, Brandon Pugh, who was

staying    at      his   apartment    for       the   weekend,       handle    the    drug

transaction.        Following the transaction, police arrested Adkins

and   Pugh.        Sellers   was     later      arrested      in     Charlotte,      North

Carolina.        Sellers and Pugh were indicted on the above charges,

and Adkins was indicted on Count One and several counts related

to her transactions with the confidential informant.                                Adkins

pleaded guilty and was sentenced to forty-one months in prison.

As part of her plea agreement she agreed to testify against

Sellers and Pugh.

              At    trial,   the   Government         relied       on   testimony    from

Adkins     and     the    confidential          informant,      as      well   as    law-

enforcement officials, taxi drivers familiar with Adkins, and

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several smaller-use drug users.                    The Government also presented

physical evidence found during the execution of a search warrant

at Sellers’ apartment.             Law-enforcement officials found twenty-

seven grams of cocaine, two digital scales, plastic bags, and

$4100 cash.        Law enforcement officials also seized Pugh’s cell

phone, which contained photos of the money and drugs found in

the   apartment.       At     trial,     Pugh      testified          and   denied    selling

crack to Adkins.        Pugh claimed he received $150 from her, which

he said was repayment for a loan she owed to Sellers.                                     Both

Sellers and Pugh essentially argued that Adkins was responsible

for   the    drugs    in    the     apartment           and     for    engaging      in   drug

trafficking during the time in question.

             First, Sellers claims the district court erred by not

granting     his     motion    to    depose         co-defendant            Ashley     Adkins.

Sellers’ claim lacks merit.                Sellers argues he was not able to

cross-examine Adkins effectively without a pretrial deposition.

Sellers claims this failure violated his right to exculpatory

evidence under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v.

United    States,     405   U.S.     150      (1972),         and    the    Jencks    Act,   18

U.S.C. § 3500 (2006).             He is incorrect.               As an initial matter,

no statute or case gives Sellers the authority to depose Adkins,

who   voluntarily      chose      not    to       speak       with    Sellers’       attorney.

Second,     Sellers    does    not      point      to     any       potential   exculpatory

evidence that Adkins possessed.                    Sellers had a copy of Adkins’

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plea agreement and was able to challenge her credibility based

on the concessions she received as part of the plea.                              Neither

the Federal Rules of Criminal Procedure nor this court’s case

law require the district court to allow a defendant to depose a

witness who is available for trial and voluntarily elects not to

speak to defendant’s counsel.             Therefore, the district court did

not abuse its discretion in denying Sellers’ motion to depose

Ashley Adkins.

            Sellers and Pugh both challenge the sufficiency of the

evidence     supporting      their      convictions.            In      assessing         the

sufficiency of the evidence presented in a bench trial, we “must

uphold a guilty verdict if, taking the view most favorable to

the Government, there is substantial evidence to support the

verdict.”     Elliott v. United States, 332 F.3d 753, 760-61 (4th

Cir.   2003).       “Substantial        evidence”       means     “evidence       that      a

reasonable       finder     of   fact    could       accept       as      adequate        and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”          United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996).

            On    appeal,    Sellers     and    Pugh     argue,      as    they     did    at

trial,   that     Adkins’    explanation        of     Sellers’      drug-trafficking

operation    was    uncorroborated       and    inadequate        to      support    their

convictions.         We     disagree.          While     Adkins        both   used        and

distributed drugs, she could not have conducted any business

                                          6
without    Sellers,      who    was      her    supplier.           As    demonstrated       by

numerous witnesses, Adkins did not generally have crack cocaine

available for sale and had to make arrangements with Sellers if

she    wanted    to    distribute        drugs.           During    the    course      of   the

conspiracy, one cab driver estimated that he drove Adkins to

Sellers’ apartment building between 200 and 300 times.                                   Other

cab    drivers    and       drug    users       similarly          corroborated        Adkins’

frequent drug purchases from Sellers.                         These transactions are

also    supported      by    the    parties’         cell    phone       records,      showing

frequent calls consistent with drug trafficking.

            Finally,        Sellers      and    Pugh      challenge       the   calculation

and reasonableness of their sentences.                        It is now well settled

that, after Booker v. United States, 543 U.S. 220 (2005), this

court reviews 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).           This    review

requires    appellate        consideration           of     both    the    procedural       and

substantive reasonableness of a sentence.                          Gall, 552 U.S. at 51.

In determining procedural reasonableness, this court considers

whether the district court properly calculated the defendant’s

advisory Guidelines range, considered the 18 U.S.C. § 3553(a)

(2006) factors, analyzed any arguments presented by the parties,

and    sufficiently         explained          the     selected          sentence.          Id.

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“Regardless      of    whether    the    district        court       imposes      an    above,

below,    or    within-Guidelines         sentence,        it    must       place      on   the

record    an    individualized         assessment       based        on    the    particular

facts of the case before it.”                 United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).                                 We

next    assess     the   substantive         reasonableness           of    the    sentence,

“taking     into      account     the    ‘totality        of     the        circumstances,

including       the    extent     of    any       variance      from       the    Guidelines

range.’”       United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007) (quoting Gall, 552 U.S. at 51).

               The Defendants raise challenges to both the procedural

and    substantive       reasonableness           of   their    sentences.             Sellers

claims    the    trial    court    erroneously          calculated         the    amount     of

drugs involved and erroneously imposed a two-point leadership

enhancement.          Sellers’ claims, even if they had merit, would

have no effect on the calculation of his adjusted offense level

because he was sentenced as a career offender.                               The district

court made this clear, and Sellers did not object to the career

offender       designation.        Further,        to   the     extent       that      Sellers

challenges      the    length    of    his    sentence,        his    claim       is   without

merit.     The district court considered the 18 U.S.C. § 3553(a)

factors and found Sellers’ conduct in this offense, as well as

his previous felony convictions, justified a sentence in the

middle of the Sentencing Guidelines range.                           On appeal, Sellers

                                              8
has    not   rebutted    the   presumption          that   his    within-Guidelines

sentence was reasonable.

               Pugh also challenges the calculation of his sentence.

He claims the district court failed to consider his relatively

minor role in the offense when evaluating the § 3553(a) factors.

Additionally, Pugh claims the district court erred in converting

the cash found in the apartment to cocaine base and failing to

deduct legitimate funds from the drug proceeds.

             We find that the district court properly considered

Pugh’s   involvement      in     the    offense,        which   included       supplying

cocaine base to Adkins when Sellers was in Florida.                        Similarly,

in    fashioning      Pugh’s   sentence,          the   district       court    properly

considered      Pugh’s   prior     felony        convictions     and    then    did,   in

fact, impose a downward variance of twenty-four months from the

bottom of the properly calculated Guidelines range.                             Further,

Pugh    does    not    challenge       the   district      court’s      authority      to

convert some of the money to drugs, only the court’s decision to

convert the money to cocaine base rather than marijuana and the

court’s failure to deduct $2900 in allegedly legitimate proceeds

from the $4100.        Considering that this case principally involved




                                             9
crack and that Pugh handled and photographed all the money, we

find the district court did not err. ∗

          For the above reasons, we affirm the convictions and

sentences for Sellers and Pugh.      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 reviewing a district court's application of the
Sentencing Guidelines, we review the district court's factual
findings for clear error and its legal conclusions de novo.
United States v. Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir.
2009).   At the sentencing hearing in Pugh’s case, the district
court supported its decision to hold Pugh responsible for sixty
grams of cocaine stating: “[w]ith regard to relevant conduct, he
is only being held responsible for the conduct related to that
night. Yes, most of the money was in Mr. Sellers’ room but it
is clear from the marked buy money that Mr. Pugh put it there.”



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