                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-4740


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

WALTER BROOKS,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:11-cr-00310-JAG-1)


Submitted:   April 26, 2013                   Decided:   May 2, 2013


Before WILKINSON, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew W. Greene, GREENE LAW GROUP, PLLC, Fairfax, Virginia,
for Appellant. Neil H. MacBride, United States Attorney,
Roderick C. Young, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Walter       Brooks       was    found             guilty    of       one        count    of

conspiracy     to    provide          inmates         prohibited         objects,         to     use    a

communication facility in the commission of a felony, and to

bribe a public official, in violation of 18 U.S.C. § 371 (2006);

one count of conspiracy to possess with intent to distribute and

to   distribute            heroin,           in        violation              of         21      U.S.C.

§§ 841(a)(1), 846 (2006); five counts of providing contraband in

prison   and   aiding           and   abetting,            in    violation          of    18     U.S.C.

§§ 1791(a)(1),        2     (2006);       and         three        counts          of    use     of     a

communication facility to commit a felony, in violation of 21

U.S.C.   § 843(b)         (2006).        Brooks         received         an    upward          variance

sentence of 240 months’ imprisonment.                              On appeal, he argues:

(1) that he was subjected to double jeopardy; (2) that his § 371

conviction     was        not     supported           by    sufficient             evidence;          and

(3) that his sentence was both procedurally and substantively

unreasonable.       We affirm.

           Brooks’ double jeopardy claim is patently meritless. 1

It appears to be based on his erroneous belief that Count One of

the indictment required proof that Brooks had been convicted of

bribery.     First, the language of the indictment itself charges

     1
       This claim, raised for the first time on appeal, is
reviewed for plain error. United States v. Olano, 507 U.S. 725,
732 (1993).



                                                  2
only an agreement to commit bribery, and makes no reference to a

conviction for bribery.                This language is sufficient to charge a

violation of 18 U.S.C. § 371.                  To establish a conspiracy under

18 U.S.C. § 371, the Government must prove only an agreement

between two or more people to commit a crime against the federal

government, and an overt act in furtherance of the conspiracy.

United States v. Kingrea, 573 F.3d 186, 195 (4th Cir. 2009)

(citing United States v. Ellis, 121 F.3d 908, 922 (4th Cir.

1997)).         Therefore, the Government need not prove a conviction

for    the      underlying      crime.        Even     where   both    the    conspiracy

offense and the underlying offense are charged and convictions

result, however, no double jeopardy violation occurs, as “[a]

substantive         crime     and   conspiracy         to   commit    that   crime   are

‘separate offenses’ for purposes of the Double Jeopardy Clause,

even       if   they    are    based     on   the    same    underlying      incidents.”

United States v. Yearwood, 518 F.3d 220, 227 (4th Cir. 2008).

Thus,      Brooks      has    failed    to    assert    a   viable    double   jeopardy

claim.

                Brooks’ challenge to the sufficiency of the evidence

sustaining his § 371 conspiracy conviction also lacks merit. 2                        We


       2
       Because Brooks contested the sufficiency of the evidence
below, our review is de novo. United States v. Penniegraft, 641
F.3d   566,    571   (4th   Cir.),   cert.   denied,   132   S.
Ct. 564 (2011).



                                               3
will uphold a guilty verdict that, “viewing the evidence in the

light    most       favorable          to    the       prosecution,        is     supported      by

substantial evidence.”                 United States v. Osborne, 514 F.3d 377,

385     (4th    Cir.       2008)        (internal         quotation         marks        omitted).

Further, we do “not review the credibility of the witnesses and

assume     that      the        jury    resolved         all     contradictions           in     the

testimony in favor of the government”; a defendant challenging

the    sufficiency         of    the    evidence         “bears       a   heavy    burden,”       as

reversal       of   a    conviction           is       limited       to   “cases     where       the

prosecution’s failure is clear.”                         United States v. Foster, 507

F.3d 233, 244-45 (4th Cir. 2007).

               As stated above, in order to establish a violation of

18 U.S.C. § 371, the Government must prove the existence of an

agreement between two or more people to commit a crime against

the     government         and     an       overt       act     in    furtherance         of     the

conspiracy.         Ellis, 121 F.3d 908 at 922.                           The evidence of a

conspiratorial agreement need not be direct, but may be inferred

from circumstantial evidence.                      Id.    Proof of a “tacit or mutual

understanding” between the conspirators is sufficient to uphold

a     conspiracy        conviction.                Id.    (internal         quotation          marks

omitted).

               We   find        the     evidence         here    sufficient         to     support

Brooks’ § 371 conviction.                   During trial, the government elicited

testimony from Brooks’ coconspirators that they worked together

                                                   4
to    smuggle     contraband,       namely       heroin,       into       federal      prison.

Further, the Government demonstrated, through witness testimony,

that the coconspirators used telephones in order to facilitate

the    heroin      smuggling        scheme.             Finally,          the     Government

established       that    Brooks    convinced       a     prison      guard      to    smuggle

heroin     into    prison       under    color     of     his       official      title,      in

exchange for payment.            Therefore, this claim must fail.

            Brooks        next    urges     that     the       sentence         imposed      was

unreasonable.       We review a sentence for reasonableness under a

deferential       abuse    of     discretion       standard.              Gall    v.    United

States,    552     U.S.    38,     51    (2007).          A    reasonableness           review

includes both procedural and substantive components.                                   Id.     A

sentence    is    procedurally          reasonable      where       the    district         court

committed no significant procedural errors, such as improperly

calculating the Guidelines range, failing to consider the 18

U.S.C. § 3553(a) (2006) factors, or insufficiently explaining

the selected sentence.            United States v. Boulware, 604 F.3d 832,

837-38 (4th Cir. 2010).                 The substantive reasonableness of a

sentence     is     assessed       in     light      of       the     totality         of    the

circumstances.       Gall, 552 U.S. at 51.

            At sentencing, the district court considered evidence,

in the form of testimony and a video, of a fight between Brooks

and other inmates that occurred while Brooks was being held at a

regional jail pending sentencing.                    Three inmates were sent to

                                             5
the hospital as a result of this encounter with Brooks.                                     The

court    referred      to   this    conduct         more    than     once   in    explaining

Brooks’ upwardly variant sentence.                    Brooks asserts that: (1) the

district court erred in relying on uncharged conduct to enhance

his sentence; (2) his due process rights were violated because

he was unable to confront and cross-examine witnesses against

him at sentencing; and (3) his Fifth Amendment right against

self incrimination was violated because he was constrained from

testifying in his own defense at sentencing for fear of possible

state charges.

               There are no limits on “the information concerning the

background,      character,        and   conduct”          of   a    convicted     defendant

that     the    district         court       may    consider         in   determining       an

appropriate sentence.             18 U.S.C. § 3661 (2006).                  So long as the

district       court    sentences        a     defendant        within      the    statutory

maximum authorized by the jury’s findings, a district court can

consider facts that it finds by a preponderance of the evidence.

See United States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir.

2009).     Based on the testimony and other evidence presented at

sentencing, the district court concluded that Brooks assaulted

three fellow inmates at the regional jail.                           In addition to this

assault,       the     district     court          also    considered       each     of     the

§ 3553(a)      factors      in   turn    and       discussed        how   each    applied    to

Brooks, particularly emphasizing the seriousness of the offense

                                               6
of bringing heroin into a prison.                               Accordingly, the district

court did not err in considering uncharged conduct.

              Brooks next argues that his due process rights and

Fifth    Amendment          privilege        against            self    incrimination         were

violated      because       he    was    unable       to    either      confront      and   cross

examine witnesses or testify himself regarding the jail assault.

As the Government correctly noted, Brooks could have called or

cross    examined       any        witness       he    wanted.              Furthermore,       the

Confrontation         Clause       does    not       apply       at    sentencing.          United

States v. Powell, 650 F.3d 388, 393 (4th Cir.), cert. denied,

132     S.    Ct.     350        (2011).         As        to     Brooks’      right       against

self-incrimination,              this    privilege         guarantees         “only    that    the

witness not be compelled to give self-incriminating testimony.”

McKune v. Lile, 536 U.S. 24, 35-36 (2002).                               No such compulsion

occurred      here.      When       a    defendant         chooses      not    to    testify    at

sentencing because of pending uncharged conduct, he takes a risk

that    the   government’s          uncontradicted              evidence      will    be    deemed

credible,      but    his        Fifth    Amendment         right      is     not    implicated.

United States v. Marshall, 719 F.2d 887, 892 (7th Cir. 1983).

Accordingly, we perceive no violation of Brooks’ constitutional

rights at sentencing.

              Finally, Brooks argues that the district court erred

in calculating the drug weight attributable to him.                                  We review a

finding of drug quantity for clear error.                                   United States v.

                                                 7
Kellam, 568 F.3d 125, 147 (4th Cir. 2009).                                 At sentencing, the

government need establish the amount of drugs involved by only a

preponderance of the evidence.                           United States v. Brooks, 524

F.3d      549,    561-62       (4th     Cir.    2008).         “Where      there       is    no     drug

seizure or the amount seized does not reflect the scale of the

offense,         the     court    shall        approximate           the    quantity         of     the

controlled            substance.”          U.S.         Sentencing         Guidelines             Manual

§ 2D1.1, cmt. n.12 (2011).

                 Brooks       alleges    that       the     district        court      engaged       in

improper         “rote    multiplication”               when    it    determined            his    drug

quantity         by    multiplying       the        amount      of    drugs      found        in    his

coconspirator’s vehicle by the number of transactions testified

to     at        trial.           Courts        have           cautioned         against           “rote

multiplication” in situations where an “estimate of quantity is

multiplied        by     an    estimate        of       frequency,”        noting      that        “drug

quantities must find specific support in the record.”                                             United

States v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003); see also

United States v. Hickman, 626 F.3d 756, 769 (4th Cir. 2010)

(noting      that        “where     courts      have        evidence        of     a    number        of

transactions, they have been permitted to multiply that number

by   an     average       weight-per-transaction                to   reach       an    estimate”).

Here, while the district court did of necessity estimate the

aggregate quantity of drugs, its methodology of multiplying the

known number of transactions by the quantity involved in the

                                                    8
final transaction and discounting the outcome by a factor of

20%, was well within the wide latitude of discretion afforded

sentencing courts.   Therefore, we find that his district court

did not err when calculating the drug weight attributable to

Brooks.   We thus find Brooks’ sentence both procedurally and

substantively reasonable.

          Accordingly, we affirm the district court’s judgment.

We deny Brooks’ motion for reconsideration of the denial of his

motion to appoint new counsel.       We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid in

the decisional process.



                                                           AFFIRMED




                                 9
