                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4826


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARIO ARTHUR GARCIA,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00066-JPB-DJJ-2)


Submitted:   April 15, 2011                   Decided:   May 27, 2011


Before MOTZ, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John Joseph Pizzuti, MCCAMIC, SACCO, PIZZUTI & MCCOID, PLLC,
Wheeling, West Virginia, for Appellant.    William J. Ihlenfeld,
II, 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Unpublished opinions are not binding precedent in this circuit.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:

              Mario Arthur Garcia appeals his conviction by a jury

of distribution of 16.7 grams of cocaine base, in violation of

21 U.S.C. § 841(a) (2006), and his resulting seventy-eight-month

sentence. 1     We affirm.

              Garcia first argues that the district court erred in

denying    his       motion    to    dismiss         the    indictment          for    excessive

pre-indictment         delay.        We    review        for    abuse      of    discretion      a

district        court’s       denial       of        a     motion         to     dismiss       for

pre-indictment delay.            See United States v. Loe, 586 F.2d 1015,

1019 (4th Cir. 1978).            The Fifth Amendment requires dismissal of

an   indictment         where       it    is     shown         at   trial        that,    first,

pre-indictment         delay    substantially              prejudiced      the     defendant’s

rights     to    a    fair     trial      and,       second,        the    delay       “‘was    an

intentional          device     to       gain       tactical        advantage          over    the

accused.’”           United    States      v.    Uribe-Rios,         558        F.3d   347,    358

(4th Cir. 2009) (quoting United States v. Marion, 404 U.S. 307,

324 (1971)).          Finding no such showing here, we conclude that

this claim lacks merit.


     1
       The district court initially imposed a sentence of 121
months’ imprisonment.      However, upon Garcia’s motion for
resentencing in light of the Fair Sentencing Act of 2010, Pub.
L. No. 111-1220, 124 Stat. 2372, the district court reduced the
imprisonment term to seventy-eight months.  The Government does
not appeal the reduction in sentence.



                                                2
             Next, Garcia asserts that the district court erred in

denying      his   motion     to    exclude       testimony        that   he     came    to

West Virginia to sell two ounces of crack cocaine.                              He argues

that the testimony was not necessary to complete the narrative

of the offense charged, exceeded the scope of the indictment,

and should not have been admitted.

             We review a district court’s evidentiary rulings for

an abuse of discretion.             United States v. Blake, 571 F.3d 331,

350 (4th Cir.), cert. denied, 130 S. Ct. 1104 (2010).                                   Rule

404(b) of the Federal Rules of Evidence prohibits the admission

of “[e]vidence of other crimes, wrongs, or acts . . . to prove

the character of a person in order to show action in conformity

therewith.”        However, Rule 404(b) does not apply to evidence of

acts intrinsic to the crime charged.                   United States v. Chin, 83

F.3d   83,    87    (4th Cir. 1996).             Here,      the    disputed     testimony

constitutes evidence intrinsic to the crime.                       Thus, the district

court did not abuse its discretion in allowing the challenged

testimony.

             Turning to the trial, Garcia first argues that the

district     court    erred    in    declining         to    provide      the    jury    an

instruction on reasonable doubt.                   The district court did not

err.     “In this circuit, ‘although the district court may define

reasonable doubt to a jury [it] is not required to do so.’”

United    States     v.   Lighty,     616       F.3d   321,       380   (4th Cir. 2010)

                                            3
(quoting       United      States       v.    Walton,       207       F.3d      694,    696-97

(4th Cir. 2000) (en banc)).

               Garcia next argues that the district court should have

granted him a new trial after the Government elicited testimony

regarding a polygraph examination.                       Garcia also argues that he

is entitled to a new trial because the Government’s rebuttal

argument was improper.              We review a district court’s denial of

motions for a mistrial or a new trial for abuse of discretion.

United    States      v.   Wallace,       515      F.3d    327,       330    (4th Cir. 2008)

(mistrial);       United        States       v.     Basham,       561       F.3d     302,     319

(4th Cir. 2009) (new trial).

               A mistrial should be granted when the district court

finds that it has become a “manifest necessity” to stop the

trial    because      some      event     would      prevent       the       defendant      from

receiving a fair trial by an impartial jury.                                See Illinois v.

Somerville, 410 U.S. 458, 461 (1973); Sanders v. Easley, 230

F.3d 679, 685 (4th Cir. 2000).                     Whether evidence of a polygraph

test warrants a mistrial depends on “(1) whether an inference

about    the    result     of    the    test       may    [have]      be[en]       critical    in

assessing       the     witness’s        credibility,           and     (2)     whether       the

witness’s       credibility       [was]        vital       to    the        case.”      United

States v. Tedder, 801 F.2d 1437, 1444 (4th Cir. 1986).                                  Garcia

has   failed     to   establish        either       element     here.         Following       the

reference to the polygraph, the district court clarified that

                                               4
witness had not taken a polygraph test and instructed the jury

to ignore the statement, thus avoiding any prejudice to Garcia.

            Granting a new trial for prosecutorial misconduct is

appropriate   where    the   prosecutor’s   remarks   were   improper   and

“prejudicially affected the defendant’s substantial rights so as

to deprive the defendant of a fair trial.”               United States v.

Golding, 168 F.3d 700, 702 (4th Cir. 1999) (internal quotation

marks omitted).    See United States v. Scheetz, 293 F.3d 175, 186

(4th Cir. 2002) (factors used to assess prejudice).           We conclude

that the comments Garcia identifies as objectionable did not

deprive him of a fair trial.       The comments were brief, isolated,

and did not have a tendency to mislead the jury.

            Garcia also argues that the evidence was insufficient

to support his conviction.       We review de novo challenges to the

sufficiency of the evidence supporting a jury verdict.               United

States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007).                  A jury

verdict should be affirmed where, “viewing the evidence in the

light most favorable to the prosecution, [it] is supported by

substantial evidence.”       United States v. King, 628 F.3d 693, 700

(4th Cir. 2011) (internal quotation marks omitted).           Substantial

evidence is such “‘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.’”      Id.



                                    5
(quoting    United         States     v.        Burgos,     94 F.3d        849,         862

(4th Cir. 1996) (en banc)).

           To convict Garcia for distribution of cocaine base,

the   Government     was     required      to    prove     that    Garcia,        “as     a

principal, (1) knowingly and intentionally (2) distributed (3)

[16.7] grams of cocaine base, or that, as an aider and abettor,

he knowingly associated himself with and participated in the

criminal venture.”         United States v. Yearwood, 518 F.3d 220, 227

(4th Cir. 2008) (internal quotation marks omitted).

           We conclude that the evidence presented at trial is

more than sufficient to sustain the conviction.                        Garcia’s co-

defendant testified that Garcia had come to the area with two

ounces of crack cocaine, looking to make money, and that he had

arranged for Garcia to make the sale to another individual, who

turned out to be a confidential informant.                        The testimony of

Garcia’s   co-defendants,           law    enforcement       officers,      and         the

confidential   informant            provided      overwhelming        evidence           of

Garcia’s guilt.

           Next,   Garcia      challenges         his     sentence.        We     review

Garcia’s sentence for reasonableness under a deferential abuse

of discretion standard.         Gall v. United States, 552 U.S. 38, 46

(2007).     This     review     requires         consideration        of   both         the

procedural and substantive reasonableness of a sentence.                                Id.

“Improper calculation of a defendant’s advisory sentencing range

                                           6
under the Guidelines constitutes significant procedural error.”

United States v. Clay, 627 F.3d 959, 964 (4th Cir. 2010).

             Garcia first argues that his sentence was procedurally

unreasonable because the district court held him accountable for

two ounces of cocaine base when the indictment charged him with

possession of only 16.7 grams.                     Section 1B1.3(a) of the U.S.

Sentencing Guidelines Manual (“USSG”) (2009) specifies that the

base    offense     level    is    to    be       determined     by     considering     the

offense of conviction and relevant conduct.                        “Sentencing judges

may find facts relevant to determining a Guidelines range by a

preponderance       of    the     evidence,        so     long   as     that    Guidelines

sentence is treated as advisory and falls within the statutory

maximum authorized by the jury’s verdict.”                             United States v.

Benkahla,    530    F.3d     300,    312      (4th Cir. 2008).             We    will   not

overturn     such        factual    findings            unless    they     are     clearly

erroneous.         United       States    v.       Jeffers,      570    F.3d     557,   570

(4th Cir. 2009).

             Here, the indictment charged Garcia with distributing

16.7 grams of cocaine base, authorizing a maximum sentence of

forty     years’    imprisonment.                 21    U.S.C.    § 841(b)(1)(B)(iii)

(2006).      Evidence       adduced      at       trial    was   sufficient       for   the

district court to hold Garcia accountable at sentencing for two

ounces of cocaine.              Based on distribution of 56.7 grams (two

ounces) of cocaine base, Garcia’s Guidelines range was 121 to

                                              7
151 months (later reduced to 78 to 97 months), well below the

maximum authorized by statute.                    Accordingly, the district court

did not commit procedural error in holding Garcia accountable

for 56.7 grams of cocaine base.

           Garcia also contests the district court’s application

of a two-level obstruction of justice enhancement.                             See U.S.

Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2009).                            Garcia

contends     the        application      of        the    enhancement      constitutes

punishment “for his simple denial of guilt.”

           This court reviews the factual findings underpinning

application of a sentence enhancement for clear error.                           United

States v. Carter, 601 F.3d 252, 254 (4th Cir. 2010).                            Section

3C1.1 of the Guidelines provides for a two-level increase in the

offense level “[i]f . . . the defendant willfully obstructed or

impeded, or attempted to instruct or impede, the administration

of justice with respect to the investigation, prosecution, or

sentencing      of      the   instant    offense.”          The    provision     covers

perjury.      USSG       § 3C1.1    cmt.      n.    4(b).     A    defendant    commits

perjury “if [he] gives false testimony concerning a material

matter   with      the    willful      intent       to   provide   false    testimony,

rather   than      as     a   result    of     confusion,     mistake,     or    faulty

memory.”     United States v. Dunnigan, 507 U.S. 87, 94 (1993).                       A

perjury enhancement must be upheld if the district court “makes

a finding of an obstruction of, or impediment to, justice that

                                              8
encompasses      all     of    the    factual      predicates    for    a    finding      of

perjury.”       Id. at 95.

               Garcia’s       presentence     report       recommended       that   he    be

given an obstruction of justice enhancement because he testified

falsely concerning a material issue.                     Garcia has not argued that

his   testimony     was       affected   by       confusion,    mistake,      or    faulty

memory.     Accordingly, the district court did not err in applying

the obstruction of justice enhancement.

               Finally, Garcia argues that the district court failed

to address what he identifies as a Kimbrough 2 issue — whether the

sentencing disparity between crack and powder cocaine “yields a

sentence       greater        than    necessary       to     achieve     [§] 3553(a)’s

purposes.”         This       issue   implicates         both   the    procedural        and

substantive reasonableness of his sentence.                      See Gall, 552 U.S.

at 50-51; United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010)           (“Substantive           reasonableness        examines         the

totality    of    the     circumstances       to     see    whether    the    sentencing

court abused its discretion in concluding that the sentence it

chose satisfied the standards set forth in § 3553(a).”); United

States    v.    Lynn,     592    F.3d    572,      575     (4th Cir. 2010)      (stating

      2
       Kimbrough v. United States, 552 U.S. 85 (2007), held that
sentencing courts may conclude that application of a 100-to-one
crack to powder ratio produced a sentence greater than necessary
under 18 U.S.C. § 3553(a) (2006), and may deviate from the
Guidelines on that basis.



                                              9
district court must address nonfrivolous arguments presented by

parties in order for sentence to be procedurally reasonable).

            Here, Garcia’s oblique reference to the crack/powder

disparity did not require the district court to specifically

address the argument.       Garcia mentioned the disparity in passing

in his sentencing memorandum and did not raise the issue at the

sentencing     hearing.          Therefore,      the        district        did   not

procedurally    err.        Further,        Garcia     fails       to     rebut   the

presumption of reasonableness this court accords to a sentence

within a properly-calculated Guidelines range.                 United States v.

Go, 517 F.3d 216, 218 (4th Cir. 2008).                Moreover, the district

court opted to sentence Garcia in accord with the newly-enacted

Fair Sentencing Act, rather than the then-applicable Guidelines

range, so the court did not consider itself bound to apply the

crack/powder    cocaine    ratio    dictated     by    the     Guidelines.         We

therefore    conclude     that   his    sentence       is    not        substantively

unreasonable.

            Based on the foregoing, we affirm Garcia’s conviction

and sentence.    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 in the decisional

process.

                                                                            AFFIRMED



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