                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-5006


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

JUAN CALDERON,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.     J. Michelle Childs, District
Judge. (6:11-cr-00338-JMC-20)


Argued:   December 12, 2013                 Decided:   February 7, 2014


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach,
South Carolina, for Appellant.      Andrew Burke Moorman, Sr.,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.    ON BRIEF: William N. Nettles, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     After a four-day trial, a jury found Juan Calderon guilty

of one count of conspiracy to possess with intent to distribute

marijuana,    cocaine,    and    cocaine       base   (also      known      as   “crack

cocaine”).     Calderon now appeals on multiple grounds, alleging

that the district court erred in several evidentiary rulings, in

dismissing    his    motion    for    a   judgment       of    acquittal,        and   in

determining his sentence.            For the following reasons, we affirm

his conviction and sentence.



                                          I.

                                          A.

     In 2004, Justin Jenkins began operating a drug trafficking

organization (DTO) in South Carolina dedicated to distributing

marijuana,    cocaine,     and    crack        cocaine.        The    DTO    obtained

marijuana    and    cocaine,    cooked     a   portion    of    the   cocaine      into

crack cocaine, and then sold the inventory through a network of

local distributors within South Carolina.                     Members of the DTO

included, among others, Kevin Montgomery and Thomas Renrick IV.

     Queston Clement, a friend and co-conspirator of Jenkins who

lived in California, introduced Jenkins to Cristian Escobedo-

Mendoza in 2008.         Shortly thereafter, Escobedo began shipping

marijuana from California to South Carolina.                     Later that year,

Escobedo introduced Jenkins to Calderon so that Calderon could

                                          2
continue supplying marijuana to the DTO while Escobedo served a

prison    sentence.          Calderon    proceeded      to     sell    marijuana     to

Jenkins and Clement from September 2008 to January 2009.                             He

delivered the drugs in a variety of ways, one of which was to

give packages to Clement, who would then ship them cross country

in a pickup truck provided by Jenkins in which Calderon had

installed a hidden compartment.               In order to pay for the drugs,

Jenkins    either     provided    cash    payments      or   had      his   associates

deposit    money      into    various     South      Carolina      bank       accounts,

including one under the name of Juan Calderon.

     In    December     2008,    Jenkins      inquired    into     whether      or   not

Calderon     could     procure    cocaine,      to     which     Calderon       replied

affirmatively.        Following that discussion, on January 8, 2009,

Jenkins flew to California to meet with Calderon and purchase

cocaine from him.        After his arrival, Jenkins, Calderon, and a

third man named Heliodoro Torrez-Sanchez drove to Fresno, where

they stayed the night.           The next morning Jenkins gave $23,000 to

Sanchez for the purpose of buying the cocaine in a Wal-Mart

parking lot while Jenkins and Calderon waited at a nearby Carls,

Jr. restaurant.

     The three conspirators were unaware that Sanchez was the

subject    of   an    investigation      by   the    Fresno     Police      Department

(FPD), and that the purported cocaine dealer was, in reality, an

undercover      FPD   detective    named      Manuel    Robles.         FPD    officers

                                          3
arrested Sanchez immediately after he displayed the money to

Detective Robles.            They recovered from Sanchez $23,000 and a set

of car keys to a Chevy Malibu.                      Sanchez then directed them to

the Carls, Jr. restaurant, where they found both Jenkins and

Calderon.            The    officers      ascertained        that    the    car    keys    in

Sanchez’s possession were to Calderon’s Malibu, and later that

day placed both Jenkins and Calderon under arrest.                                The local

district    attorney          declined      to      charge    Jenkins       and    Calderon

because    of    insufficient           corroborating        evidence      and    they    were

both   released        from    custody.          Jenkins     left    California,         after

which he and Calderon did not see each other again until 2011.

       Escobedo, upon his release from prison in late 2010, began

once   again     supplying        marijuana         and   cocaine    to    the    DTO.     As

before, payments for these narcotics occurred at least partly

through Calderon’s bank account.                     In January 2011, Jenkins and

Renrick traveled to Las Vegas to meet with Escobedo but were

surprised       to     be   met    at     the    airport      by    both    Escobedo      and

Calderon.        Calderon         drove    Jenkins,       Renrick,    and    Escobedo      to

their hotel and during the drive he declared that the “snitch”

from the Fresno drug buy, Sanchez, had been killed.

       Calderon was indicted by a federal grand jury later in 2011

in connection with his sale of narcotics to the DTO.                                     While

jailed and awaiting trial, Calderon told fellow inmate Stephon

Hopkins that Jenkins had “snitched” on him.                         J.A. 491.      Calderon

                                                4
tried    to     convince     Hopkins         to    have       friends    outside    the   jail

frighten Jenkins’s family to keep him from testifying for the

prosecution and stated that if Jenkins did testify, Calderon

would have his associates “start killing . . . people.”                                    J.A.

495.     Calderon also mentioned his plans to intimidate Jenkins to

another    inmate,      Derrick       Mosley,           and    then    endeavored    to    hire

Mosley     to    murder      Jenkins.              Calderon       finally     attempted     to

persuade       Demauryo      Moody,      a    third          inmate,    to   sign   a     false

statement undermining Jenkins’s credibility.

                                                  B.

       The indictment charged Jenkins, Calderon, and the other co-

conspirators with multiple counts of criminal conduct arising

from the operations of the DTO.                        Calderon was only charged under

Count One: conspiracy to possess with intent to distribute five

kilograms       or    more   of    cocaine,            280    grams     or   more   of    crack

cocaine, and 1,000 kilograms or more of marijuana in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A), all in violation of 21

U.S.C. § 846.

       Prior     to    trial,      the    government            notified     Calderon     that

Jenkins,        Renrick,      Montgomery,               Clement,       Escobedo,    Hopkins,

Mosley, and Moody would all testify against Calderon on behalf

of the prosecution.               Calderon indicated his desire to inquire

into the sentences faced by these cooperating witnesses, and the

government subsequently moved in limine to prohibit him from

                                                  5
eliciting specific numerical ranges on cross-examination on the

grounds that it would unduly prejudice the jury.                         The district

court      granted     the   motion,       and   restricted       Calderon    to        using

“adjectives”       instead      of    specific     numbers     when    examining          the

cooperating witnesses about their sentencing ranges.

      For his part, Calderon moved in limine to exclude evidence

of the events surrounding his 2009 arrest in Fresno (the Fresno

Incident) as improper character evidence under Federal Rule of

Evidence (FRE) 404(b) and as unfairly prejudicial under FRE 403

because it associated him with Jenkins, an admitted high level

drug dealer.           The district court found that evidence of the

Fresno Incident was admissible because it was “intrinsic” to the

conspiracy and denied Calderon’s motion accordingly.

      The government indicated that it would call three officers

of   the    FPD   to    testify      to    the   events    surrounding       the    Fresno

Incident.      In response, Calderon moved in limine to exclude any

testimony by these officers about statements Sanchez made to

them on the basis that the statements were hearsay and admitting

them would violate Calderon’s rights under the Sixth Amendment’s

Confrontation        Clause.         The    district      court    denied    Calderon’s

motion,      finding     that     Sanchez’s       out-of-court      statements           were

admissible        because    they     were       either    being    offered        by    the

government to show the effect on the FDP’s investigation or were

admissions by Sanchez as Calderon’s co-conspirator.

                                             6
      At    the       conclusion     of    the        government’s      case-in-chief,

Calderon moved for a judgment of acquittal under Rule 29 of the

Federal    Rules       of    Criminal     Procedure      on    the     basis       that    the

evidence was insufficient to sustain a conviction against him

for conspiracy to distribute crack cocaine.                         The district court

denied his motion and sent the charge to the jury.                                 Following

deliberations, the jury found Calderon guilty and attributed to

him   personally       the    liability     for    1,000      kilograms       or    more    of

marijuana, five kilograms or more of cocaine, and 280 grams or

more of cocaine base.            Over Calderon’s objections, the district

court calculated his range under the United States Sentencing

Guidelines at between 292 and 365 months and sentenced him to

292 months in prison.              Calderon thereafter filed timely notice

of this appeal.



                                           II.

      Calderon’s        initial     contention          on    appeal     is        that    the

district court violated his Sixth Amendment right to confront

the   witnesses       against    him     when    it    prevented      him   from        cross-

examining       the     government’s       cooperating         witnesses           on     their

numerical       sentencing      ranges     and    potential         reductions.            “We

review for abuse of discretion a trial court’s limitations on a

defendant’s cross-examination of a prosecution witness,” United

States     v.    Ramos-Cruz,       667    F.3d        487,    500    (4th     Cir.        2012)

                                            7
(internal quotation marks omitted), and review de novo the lower

“court’s         legal    conclusions         regarding       constitutional        claims,”

United States v. Dinkins, 691 F.3d 358, 382 (4th Cir. 2012).

                                                  A.

       The Confrontation Clause in the Sixth Amendment guarantees

to   every       criminal     defendant           the    right    to    cross-examine      the

witnesses against him, and thereby “expose to the jury the facts

from    which      jurors   .    .     .     could      appropriately     draw    inferences

relating to [their] reliability.”                         Olden v. Kentucky, 488 U.S.

227, 231 (1988) (internal quotation marks omitted).                                But this

right       is    not    absolute,         because       “trial    judges    possess    wide

latitude to impose reasonable limits on cross-examination, based

on concerns including harassment, prejudice, confusion of the

issues, repetition, or marginal relevance.”                              United States v.

Turner, 198 F.3d 425, 429 (4th Cir. 1999).

       In    the    context      of    cross-examining            cooperating     witnesses,

the “critical question” is whether the defendant was given the

opportunity to reveal the witness’s “subjective understanding of

his bargain with the government.”                         United States v. Ambers, 85

F.3d    173,       176    (4th        Cir.     1996)      (internal      quotation     marks

omitted).           Consequently,           our    inquiry       on    appeal    focuses   on

“whether the jury possesse[d] sufficient evidence to enable it

to make a discriminating appraisal of bias and incentives to lie



                                                  8
on the part of the witnesses.”                     United States v. Cropp, 127 F.3d

354, 359 (4th Cir. 1997) (internal quotation marks omitted).

         In Cropp, we held that a district court did not abuse its

discretion when it prohibited a defendant from inquiring into

the contrasting numerical sentencing ranges that co-conspirators

could have received absent cooperation and hoped to receive with

cooperation.          Id. at 358-59.           We recognized that the credibility

of   cooperating           witnesses     in    a       criminal   prosecution     is   “very

relevant.”        Id. at 358.           But we also observed that a trial court

might legitimately be concerned that, if the jury learned the

severity        of      the     sentences          faced     by    a    defendant’s      co-

conspirators, it would conclude he faced the same punishment and

“hesitate to find [him] guilty even if the evidence proved [his]

guilt.”         Id.     We ruled that the threat of jury nullification

trumped the minor marginal value added by permitting inquiry

into specific sentencing ranges because, based on the testimony

elicited on cross-examination, “the jury was already well aware

that the witnesses were cooperators facing severe penalties if

they      did     not       provide      the       government        with     incriminating

information.”         Id. at 359.

         In the case before us, the district court ruled under FRE

403, which provides the trial court the discretion to exclude

testimony when its probative value is “substantially outweighed

by   a    danger      of    .   .   .   unfair         prejudice,”     that   Calderon   was

                                                   9
permitted    to    cross-examine       each    of    the   cooperating       witnesses

about their expected prison sentences using “adjectives” but not

“numbers.”         J.A.    68.         Calderon      maintains       the     numerical

sentencing    ranges      and    potential     reductions     for    assisting       the

government    would     facilitate      the    jury’s      ability   to     perform    a

“discriminating appraisal” of the incentives of the cooperating

witnesses to be untruthful and the district court’s evidentiary

ruling was thus in error.              He also claims that Cropp does not

apply to the cross-examinations of Hopkins, Mosley, and Moody

because     they   were    not    Calderon’s        co-conspirators.          Even    if

Calderon is correct, we need not determine the precise scope or

application of our holding in Cropp in this case.                      For assuming

without deciding that any constitutional error occurred, it was

unquestionably harmless.

                                          B.

      The “Constitution entitles a criminal defendant to a fair

trial,” but it does not guarantee a “perfect one.”                         Delaware v.

Van Arsdall, 475 U.S. 673, 681 (1986).                     Therefore, “otherwise

valid conviction[s] should not be set aside” if we can conclude,

“on the whole record, that the constitutional error was harmless

beyond a reasonable doubt.”             United States v. Abu Ali, 528 F.3d

210, 256 (4th Cir. 2008) (internal quotation marks omitted).

      As part of its case, the government introduced bank records

and   the   testimony     of     the   arresting     officers    involved      in    the

                                          10
Fresno Incident.       The government’s case also depended in large

part    on    the    testimony    of    co-conspirators    and     jailhouse

informants.     In Turner, we found that the district court erred

as a matter of law by excluding as not relevant testimony from a

witness regarding her understanding of the penalties she would

have faced had she not cooperated with the government.             198 F.3d

at 430.      We observed, though, that the witness admitted she

faced a “pretty serious” penalty and that it was impossible to

conclude that “a more specific response from [the witness] would

have    significantly     changed      the   jury’s   impression    of   her

credibility.”       Id. at 431.   Thus, we held that even if the error

was constitutional it was “harmless beyond a reasonable doubt”

because the district court permitted a “substantial and thorough

examination of [the witness’s] biases.”          Id. at 430-31 & n.6.

       The district court afforded Calderon a similar opportunity

to conduct a vigorous inquiry into the cooperating witnesses’

subjective understandings of their expected prison sentences and

he took full advantage of it.          The trial court explained that it

“did allow the defense to use adjectives, harsh penalty, serious

penalties, without indicating a number.”              J.A. 361.     Calderon

elicited separately from Clement, Escobedo, and Moody the fact

that they were each facing the possibility of serving “a lot of

time” incarcerated, J.A. 361-62 (Clement), 457 (Escobedo), 589

(Moody), from Jenkins that he did not want to “spend a long time

                                       11
in jail,” J.A. 254, and from Mosley that he might receive a

“significant          amount          of      time”     locked        up,     J.A.     566-67.

Furthermore, despite the district court’s restriction, Renrick

admitted on cross-examination that he was “looking at life” in

prison,       J.A.    416,      and    Hopkins       stated    that    he    “just     did      two

years” and had “five years and ten months” left on his sentence,

J.A. 499.        Finally, Calderon told the district court that he

never    intended       to      call       into   question     the    credibility          of   the

eighth cooperating witness, Montgomery.

       In addition to these admissions, the record also reveals

that    the    district         court       permitted   a     great    deal    of    testimony

regarding       each       of        the     cooperating       witnesses’          biases       and

credibility.          All eight testified on direct examination that

they had pleaded guilty to various crimes and hoped or expected

to   gain      leniency      on       their       sentences    by     testifying      for       the

government.          Calderon extensively impeached Jenkins, who was the

government’s         key     cooperating           witness,      using      his     many        past

instances of untruthfulness.                       Calderon forced Clement to admit

that    he    had     lied      to     the    police,    cornered       Renrick      with       his

extensive criminal history, and revealed Escobedo’s omission of

key details in his early debriefings with government agents.                                     He

also    cross-examined           Hopkins,         Mosley,     and    Moody    --     the    three

informants who had interacted with Calderon in jail -- on their

many criminal convictions unrelated to the conspiracy in this

                                                   12
case and compelled them each to admit they wanted to be released

as   soon   as   possible.            Calderon    meticulously      impeached     these

witnesses and we think the possibility exceedingly small that

the admission of their precise sentencing ranges and possible

reductions       would       have      “significantly       changed       the    jury’s

impression of [their] credibility.”                Turner, 198 F.3d at 431.

       Moreover, it cannot be said that the jury did not have

some   notion     of     the    exact     prison     sentences      Calderon’s       co-

conspirators      faced.        When     Calderon    asked    Renrick      if   he    was

“looking at a lot of time,” which is the exact same question

Calderon posed to several of the other cooperating witnesses,

Renrick testified that he faced a life sentence.                      J.A. 416.      The

district court also highlighted the incentives of cooperating

witnesses to be untruthful when it carefully instructed the jury

prior to its deliberations that when deciding what weight to

give   their     testimony       it    could     consider    the   fact    they      were

cooperating with and depended on the government for possible

sentence    reductions.          Considering       the    entire    record,     we   are

satisfied    that      the     district    court’s       ruling    did   not    deprive

Calderon of a fair trial and that any violation of his Sixth

Amendment rights was harmless beyond a reasonable doubt.




                                           13
                                          III.

      Calderon’s second and third arguments on appeal rest on his

claim that the government failed to offer evidence connecting

him to the sale of crack cocaine.                    He first maintains that the

district court erred in denying his motion for a judgment of

acquittal     because       the    government         did    not        prove    beyond   a

reasonable    doubt     that      he   was    involved      in    the     sale    of   crack

cocaine.     He argues alternatively that the district court erred

in dismissing his motion because the government proved not one

conspiracy to distribute marijuana, cocaine, and crack cocaine,

but instead two separate conspiracies: one involving marijuana

and   cocaine   and     the    other,        to    which    he    was    not     connected,

involving crack cocaine.               We discuss each of these arguments in

turn.

      “We review de novo the district court’s denial of a motion

for judgment of acquittal pursuant to Rule 29 of the Federal

Rules of Criminal Procedure.”                United States v. Green, 599 F.3d

360, 367 (4th Cir. 2010).                Because this is a challenge to the

sufficiency     of    the     evidence,           “[w]e    will    sustain       the   jury

verdict” if we find that, “viewing the evidence in the light

most favorable to the government, there is substantial evidence

to support the conviction.”              United States v. Hamilton, 699 F.3d

356, 361 (4th Cir. 2012) (internal quotation marks omitted).



                                             14
                                            A.

       Calderon asserts that the government, by charging him with

conspiracy to distribute marijuana, cocaine, and cocaine base,

must prove his connection with each of those substances beyond a

reasonable doubt.            It is true of course that the government

bears the burden of proving to the jury all the elements of the

charged offense beyond a reasonable doubt.                       United States v.

Burgos,       94    F.3d   849,   858    (4th    Cir.   1996)   (en    banc).    The

elements of the conspiracy charged in this case are that the

defendant (1) had an agreement to distribute marijuana, cocaine,

and cocaine base, (2) knew of the conspiracy, and (3) knowingly

and voluntarily participated in that conspiracy.                      United States

v. Allen, 716 F.3d 98, 103 (4th Cir. 2013).                     Calderon rests his

argument on the “and” linking the drugs in the first element,

but we are not persuaded that this conjunction shows that the

government failed to meet its burden.

       It is clearly established that “one may be a member of a

conspiracy without knowing its full scope, or all its members,

and without taking part in the full range of its activities or

over    the        whole   period   of     its   existence.”          Id.   (internal

quotation marks omitted).                The focus of a conspiracy charge is

not on the details of the operation, but rather whether there

has    been    an    “agreement     to    violate   the   law.”       Id.   (internal

quotation marks omitted).

                                            15
        It is Calderon’s position that the government did not prove

his involvement in the conspiracy because while it presented

evidence linking him to the sale of marijuana and cocaine, it

had no evidence connecting him to the sale of crack cocaine,

which was cooked and distributed solely in South Carolina by the

DTO.     But the record viewed in the light most favorable to the

government affords ample reason to reject his claim.                   Calderon’s

assumption of Escobedo’s drug supply role when Escobedo went to

prison, repeated drug sales to Jenkins and Clement, modification

of Jenkins’s pickup truck with a hidden compartment, receipt of

drug    payments     through     his     bank   account,   involvement     in     the

attempted cocaine purchase in Fresno in 2009, declaration that

Sanchez was a “snitch” and had been murdered, and attempts once

in jail to intimidate and murder Jenkins altogether make for a

strong case.       Although the government did not offer evidence of

Calderon’s     personal       involvement       with    crack   cocaine,     it     is

uncontested that members of the DTO produced and distributed

crack     cocaine.          Calderon’s     part    in   advancing    the   general

conspiracy plainly suffices to sustain his conviction, and we

decline to disturb the jury’s verdict in this regard.

                                           B.

       Calderon      next     claims     that     the   government   proved       two

conspiracies       at   trial,     only     one    of   which   implicated        him.

Because he did not raise this argument in his Rule 29 motion

                                           16
below, we review it for “plain error” under Federal Rule of

Criminal Procedure 52(b).             United States v. Wallace, 515 F.3d

327, 331-32 (4th Cir. 2008).            Under this standard, the defendant

bears the burden of demonstrating that (1) an error occurred,

(2) it was plain, and (3) it affected his substantial rights.

United   States     v.    Rodriquez,    433   F.3d    411,   414-15    (4th   Cir.

2006).    And even if he can show these three factors, “we have

discretion whether to recognize the error, and should not do so

unless the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.”                  United States v.

Dyess, 730 F.3d 354, 361 (4th Cir. 2013) (internal quotation

marks omitted).

       Calderon’s        contention     relies       on   the   same     general

proposition discussed above with one exception: in this version

of the argument, he maintains that the government’s failure to

tie him to the crack cocaine shows that there were parallel but

dichotomous conspiracies, only one of which involved him.                       We

have   recognized        that   a   “single   conspiracy     exists,   when    the

conspiracy had the same objective, it had the same goal, the

same nature, the same geographic spread, the same results, and

the same product.”         United States v. Jeffers, 570 F.3d 557, 567

(4th Cir. 2009) (internal quotation marks omitted).                    “The mere

fact that more than one substance is charged . . . does not mean



                                        17
there are multiple conspiracies.”                   United States v. Barlin, 686

F.2d 81, 89 (2d Cir. 1982).

       The testimony and evidence adduced at trial reveals the

coherence of the conspiracy at issue in this case.                            Calderon

shared the same objective as his co-conspirators: to make money

by shipping and selling prohibited substances in violation of

federal      drug    laws.       He     provided       narcotics      to     the     same

individuals who were producing crack cocaine.                       The conspirators

used   the    same    methods    to    transport       the    drugs   and    the     same

techniques to make and receive payments.                     They distributed those

drugs within the same geographic area of South Carolina.                             And,

until they were apprehended, they enjoyed the same fruits of

their unlawful enterprise.             We therefore hold that Calderon did

not carry his burden of proving that the district court plainly

erred in dismissing his Rule 29 motion.



                                         IV.

       In    his    fourth    argument,        Calderon       maintains      that     the

district     court    erred     in    permitting       the    government     to     offer

evidence     of     his   participation        in    the     2009   Fresno    Incident

because it was improper character evidence under Federal Rule of

Evidence (FRE) 404(b) and unfairly prejudicial under FRE 403.

We review a district court’s evidentiary rulings for abuse of



                                          18
discretion.          United States v. Lespier, 725 F.3d 437, 447 (4th

Cir. 2013).

     FRE   404(b)         prohibits         “[e]vidence    of       a       crime,      wrong,    or

other act” if offered at trial “to prove a person’s character in

order to show that on a particular occasion the person acted in

accordance      with      the     character.”        However,           not       all   purported

character evidence falls under 404(b)’s proscription.                                     A prior

act that is “intrinsic to the crime charged, and is not admitted

solely    to    demonstrate           bad    character,    .    .       .    is    admissible.”

United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996).                                     “Other

. . . acts are intrinsic when they are inextricably intertwined

or both acts are part of a single criminal episode or the other

acts were necessary preliminaries to the crime charged.”                                   United

States v. Wilson, 624 F.3d 640, 652 (4th Cir. 2010) (internal

quotation marks omitted).

     We are unconvinced by Calderon’s arguments that the Fresno

Incident   is       not       inextricably     intertwined      with          his       conspiracy

charge.        He    maintains        that    the   Fresno     Incident            is   extrinsic

because he was never indicted for a crime in connection with his

arrest    due       to    a    lack    of    sufficient      corroborating              evidence.

However, the fact that Calderon was never indicted is of no

import here because the evidence surrounding the Fresno Incident

was undoubtedly relevant to the narrative of the conspiracy and

“uncharged      acts      may    be    admissible     as   direct            evidence      of    the

                                               19
conspiracy itself.”             United States v. Diaz, 176 F.3d 52, 79 (2d

Cir.   1999)    (internal         quotation            marks    omitted).         It   is   the

elements of the crime, not every single piece of evidence, that

the government must prove beyond a reasonable doubt.

       The Fresno Incident was undeniably intrinsic to the charged

conspiracy.      Evidence adduced at trial showed that Jenkins and

Calderon collaborated in the attempt to purchase cocaine from

what turned out to be an undercover FPD detective.                               The attempt

to   buy   cocaine        arose   out        of    Jenkins’s      and    Calderon’s     prior

dealings     buying        and    selling          marijuana       and       demonstrated     a

continuation     and       deepening         of    their       mutual    plans    to   violate

federal drug laws for personal gain.                        The district court did not

abuse its discretion in permitting testimony about the Fresno

Incident as direct evidence of the conspiracy.

       Calderon next calls for this court to overturn the trial

court’s ruling under FRE 403, which permits a district court to

exclude     evidence       if     its    probative             value    is     “substantially

outweighed     by     a    danger       of    .    .    .   unfair      prejudice.”         The

preceding      discussion         of         the       Fresno     Incident’s       intrinsic

connection to the charged conspiracy demonstrates its probative

value.     But Calderon claims that the jury was prejudiced by the

Fresno     Incident       because   it        associated         him    with    Jenkins,    the

admitted leader of the DTO.                       The jury, he contends, may have

desired to punish him for his involvement in the attempt to buy

                                                  20
cocaine    regardless          of        whether       he     was     actually       guilty    of

conspiracy.       Any slight prejudice arising from these inferences

is   neither      unfair,           as     FRE        403     requires,        and    did     not

substantially      outweigh          the      probative         value     of     the     Fresno

Incident   evidence       as    a        whole.        We   cannot      conclude      that    the

district court abused its direction in admitting it.



                                                 V.

     Calderon      next    claims          that       the   district     court       improperly

permitted the FPD officers involved in the Fresno Incident to

testify to statements made to them by Sanchez.                            Calderon alleges

the statements were hearsay and their admission violated his

right to confront the witnesses against him.                                   We review the

district    court’s        rulings          involving          hearsay     for       abuse     of

discretion, United States v. Obi, 239 F.3d 662, 667 (4th Cir.

2001),    and   its   Confrontation               Clause      rulings     de    novo,    United

States v. Abu Ali, 528 F.3d 210, 253 (4th Cir. 2008).

     During     the   trial,         the     government         called    Officer       Robles,

Officer Robert Valdez, and Officer Dean Cardinale of the FPD to

describe    the    events       surrounding             the    Fresno     Incident.           The

officers testified that, among other things, Sanchez told the

FPD prior to his arrest that he was interested in purchasing

three    kilograms    of       cocaine       on       behalf     of    other     individuals.

Officer Robles also provided the following testimony:

                                                 21
     Q: After Mr. Sanchez was arrested in the Wal-Mart
     parking lot, where did you and other officers respond?

     A: To the Carls, Jr. restaurant.

     Q: Why did you respond to the Carls, Jr. restaurant?

     . . . .

     A: We responded out there because we had information
     that a vehicle that was used was at that location with
     co-conspirators of the drug deal.

     Q: Who gave you that information?

     A: Mr. Sanchez did.

J.A. 143-44.    Calderon maintains that Sanchez’s statements were

inadmissible    hearsay    and     violated    his    Confrontation     Clause

rights.      Specifically,    he    argues    that    Sanchez’s    pre-arrest

statements were inadmissible because the government never showed

that Sanchez was a co-conspirator and his post-arrest statement

was inadmissible because it was offered by the government for

its truth.

     Sanchez’s statements prior to his arrest fall under the co-

conspirator provision in FRE 801(d)(2)(E).             FRE 801(c) generally

prohibits    witnesses    from     relaying   to     the   jury   out-of-court

statements if they are “offer[ed] in evidence to prove the truth

of the matter asserted.”           But statements are not hearsay if

“made by the party’s coconspirator during and in furtherance of

the conspiracy” and are “offered against [the] party.”                Fed. R.

Evid.   801(d)(2)(E).        Further,      co-conspirator     statements   are


                                      22
admissible     if   the   government     can   prove    three    elements      by    a

preponderance of the evidence: (1) a conspiracy existed in fact,

(2)   “the    declarant      and   the   defendant     were     members   of    the

conspiracy,” and (3) “the statement was made in the course of,

and   in    furtherance,     of    the   conspiracy.”         United   States       v.

Graham, 711 F.3d 445, 453 (4th Cir. 2013).

      The government met its burden here.              For the first element,

there   was   the    trial    evidence    already      recounted    proving     the

existence of a conspiracy.           The second element was satisfied by

the testimony of Jenkins, as well as Sanchez’s own statements to

the FPD, that showed both Sanchez’s and Calderon’s involvement

in    the     attempted      cocaine      purchase      as      co-conspirators.

Additionally, the car keys recovered from Sanchez’s person after

his arrest were to Calderon’s Chevy Malibu, connecting Calderon

directly to Sanchez and the attempted purchase.                    Renrick also

testified that Calderon confirmed Sanchez’s participation in the

Fresno Incident when informing Jenkins that the “snitch” had

been killed.        And the third element was established because the

statements at issue were clearly “in furtherance of” the crime

in that they were made for the purpose of purchasing cocaine, a

key objective of the conspiracy.

      Sanchez’s statement after his arrest to Detective Robles

directing the FPD to where Jenkins and Calderon were waiting was

also admissible.       A statement is not hearsay under FRE 801(c) if

                                         23
it is offered for a purpose other than the truth of the matter

asserted,     such   as     “the     limited     purpose      of    explaining       why    a

government     investigation         was    undertaken.”            United       States    v.

Love, 767 F.2d 1052, 1063 (4th Cir. 1985).                               Here, Sanchez’s

statement post-arrest was offered to show why the officers went

to    the   Carls,    Jr.      restaurant      and    consequently         was    elicited

simply to show its effect on the FPD’s subsequent course of

conduct.     We thus find that the district court did not abuse its

discretion when it admitted these statements.

       Calderon’s constitutional claim is likewise wanting because

the    Confrontation           Clause      applies      only        to     “testimonial”

statements.      Crawford v. Washington, 541 U.S. 36, 51 (2004).

Statements     made       by     co-conspirators         in        furtherance       of     a

conspiracy     are    not      testimonial       in    nature,       even     when    made

unwittingly to undercover government agents.                             See id. at 56.

Likewise, statements offered for purposes other than to prove

the truth of the matter asserted are not considered testimonial.

Id. at 59 n.9.        Therefore, Sanchez’s statements to the FPD are

not    testimonial     and      do   not   run    afoul    of       the    Confrontation

Clause, and the district court did not err in admitting them.



                                           VI.

       Calderon’s sixth and final argument is that the district

court imposed on him an unreasonable sentence.                              We review a

                                            24
defendant’s sentence to confirm first that the district court

committed “no substantial procedural error.”                         United States v.

Worley, 685 F.3d 404, 409 (4th Cir. 2012).                           We apply a clear

error standard to the district court’s factual findings and a de

novo standard to its legal determinations.                           United States v.

McManus, 734 F.3d 315, 317 (4th Cir. 2013).                          “If no procedural

error exists, we review the substantive reasonableness of the

sentence imposed for abuse of discretion.”                           United States v.

Strieper, 666 F.3d 288, 292 (4th Cir. 2012) (internal quotation

marks omitted).

                                            A.

       Calderon claims the district court miscalculated the amount

of     narcotics      attributable         to     him     and      thereby          erred     in

determining         his    sentencing           range        under       the        Sentencing

Guidelines.         First,       he    contends    that       because      there       was    no

evidence     presented      at    trial    tying       him    to   the    sale       of    crack

cocaine he should not be held responsible at sentencing for the

sale    of    280    grams       of    crack     cocaine       because         it    was     not

“reasonably foreseeable to him.”                  United States v. Williams, 986

F.2d 86, 90 (4th Cir. 1993).                     Calderon also argues that the

district court incorrectly found that he was liable for “2 to

300”    pounds      of    marijuana,       J.A.     849,      when    trial         testimony

established only his direct sale of “2 to 250” pounds, J.A. 349.

Insofar      as   these   drug        amounts    are    not    attributable           to    him,

                                            25
Calderon     maintains      that        his     Base       Offense    Level     under    the

Guidelines     should      be    lower        and    his    sentence    correspondingly

reduced.

       The district court, however, properly determined that it

was bound by the jury’s verdict attributing to Calderon at least

1,000 kilograms of marijuana, five kilograms of cocaine, and 280

grams of cocaine base.            A sentencing court cannot, under its own

preponderance standard, upend the jury’s findings, particularly

when those findings are expressed in no uncertain terms in a

verdict.     See United States v. Curry, 461 F.3d 452, 460-61 (4th

Cir.   2006)    (overturning        a    district          court’s    decision    to     vary

downward     from    the        Guidelines          sentencing       range     because    it

“contradicted the weight of evidence and the verdict”).                                 As a

matter of law, the district court did not err in adopting the

drug quantities found by the jury, and therefore it properly

calculated his sentencing range under the Guidelines.

                                               B.

       We   next    consider        whether          the    resulting        sentence    was

substantively reasonable, using the presumption on appeal that a

sentence    under    a     “properly          calculated       Guidelines       range”    is

reasonable.     Strieper, 666 F.3d at 295 (internal quotation marks

omitted).      A defendant may overcome this presumption by showing

“that the sentence is unreasonable when measured against” the

statutory sentencing factors in 18 U.S.C. § 3553(a).                                United

                                               26
States    v.    Montes-Pineda,      445     F.3d    375,   379     (4th    Cir.      2006)

(internal quotation marks omitted).

      Calderon     advances       two     § 3553(a)   factors      as     grounds      for

error: that the district court failed to consider his “history

and characteristics,” § 3553(a)(1), and also ignored “the need

to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct,”

§ 3553(a)(6).         He    notes   that     his    criminal     history       was    less

substantial than some of his co-defendants who received lesser

sentences.        And he highlights the fact that some of his co-

conspirators, who pleaded to the same conduct for which he was

found guilty, received sentences more lenient than his own.

      The      sentencing     court,      however,    properly      determined         his

criminal       history     category.       The     court   below    also      found     it

reasonable that his sentence was higher than some of his co-

defendants       because,        unlike     Calderon,       they     had       accepted

responsibility for their criminal conduct.                       Moreover, none of

his   co-conspirators         had   intimidated        witnesses        who    were     to

testify     against      them.      The    Guidelines      sentencing         range    for

Calderon was between 292 and 365 months and the district court

exercised its discretion to sentence him to the lower end of

this range.        We cannot conclude that Calderon’s sentence was

substantively unreasonable.



                                           27
                            VII.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                     AFFIRMED




                             28
