                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4634



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


TIMOTHY CLAY AREY,

                                            Defendant - Appellant.



                            No. 06-4635



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


TIMOTHY CLAY AREY,

                                            Defendant - Appellant.



                            No. 06-4636



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus
RANDOLPH WILLIAM AREY,

                                              Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:05-cr-00029-sgw; 5:05-cr-00062-sgw)


Submitted:   February 19, 2007            Decided:    March 8, 2007


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Roy D. Bradley, Madison, Virginia, for Appellant Randolph William
Arey; Cheryl V. Higgins, ST. JOHN, BOWLING & LAWRENCE,
Charlottesville, Virginia for Appellant Timothy Clay Arey. John L.
Brownlee, United States Attorney, Jean B. Hudson, Assistant United
States   Attorney,  OFFICE   OF   THE   UNITED   STATES  ATTORNEY,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

      Appellants    Timothy         Clay   Arey   and   Randolph     William    Arey

(collectively, the “Defendants”) seek relief from their convictions

and   sentences    in    the   Western      District     of   Virginia   for    drug

trafficking, conspiracy, and firearms violations.                  The Defendants

raise three primary contentions on appeal. First, they assert that

there was insufficient evidence to prove the prosecution’s case in

two   respects:     (a)      that    the   Defendants     conspired    to   possess

methamphetamine with intent to distribute, and (b) that they

possessed a firearm in furtherance of a drug trafficking crime.

Second, they assert that the trial court improperly instructed the

jury on the law of conspiracy.             Third, they assert that the court

violated the Defendants’ Sixth Amendment rights by enhancing their

guidelines ranges on Count One of the Indictment based on facts not

found by the jury.       As explained below, we affirm.



                                           I.

      On November 17, 2005, a federal grand jury returned a multi-

count Superseding Indictment against brothers Timothy and Randolph

Arey.    Relevant       to   this     appeal,     the   Indictment    charged    the

Defendants with conspiring to possess methamphetamine with intent

to distribute, in violation of 21 U.S.C. § 846 (Count One), charged

Timothy with three counts of possession of a firearm in furtherance

of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)


                                           3
(Counts Three, Five, and Six), and charged Randolph with two counts

of possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1) (Counts Nine and Ten).

The Defendants pleaded not guilty and were tried by jury in

Harrisonburg, Virginia.

     During their trial, the Government presented several witnesses

who testified to the Defendants’ drug trafficking activities.1 Law

enforcement officials testified that agents of the Bureau of

Alcohol, Tobacco and Firearms (“ATF”), along with officers from

Augusta County, executed a search warrant on October 7, 2004, at

Timothy’s home.     The agents found Timothy with a loaded pistol in

his back pocket, a fanny pack containing methamphetamine, and over

$400 in cash.       In the house, the agents found $7,000 in cash,

digital scales, more methamphetamine, twenty-seven firearms, a

quantity of ammunition, and a RF detector.2

     Next,   the    Government    presented        testimony   from     the   Arey

brothers’    main   supplier     of   methamphetamine.          Wayne    Roadcap

testified    that    he   “fronted”        large   quantities    (pounds)      of

methamphetamine to Timothy and Randolph from 1996 or 1997 until




     1
      The evidence presented at trial is summarized here in the
light most favorable to the Government.     See United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
     2
      A RF detector is a device that can determine whether a person
is wearing a wire transmitter.

                                       4
2001.3   The Defendants would then sell the drugs and return cash to

Roadcap.     Roadcap kept records, which were admitted in evidence,

showing the amounts of methamphetamine distributed to each brother,

the debts they owed, and when the debts were repaid.          John Harold,

a drug dealer who had worked with Roadcap, testified that the Arey

brothers would individually come to Roadcap’s house to pick up

drugs.     He testified that Roadcap confirmed to him that the Arey

brothers were selling drugs for Roadcap.

     The    Government   also   presented   the   testimony    of   several

cooperating witnesses who had bought methamphetamine from one or

both of the Arey brothers. Louis Goulet testified that he obtained

methamphetamine from Timothy, first by paying cash and later by

trading construction tools and two guns for drugs.            When Timothy

told Goulet that he was “laying low,” he recommended that Goulet

obtain drugs from his brother Randolph, which Goulet did.           Goulet

testified that he sold some methamphetamine for the Arey brothers,

and that on one occasion Randolph was carrying a pistol when Goulet

purchased drugs from him. Randolph explained to Goulet that he had

the firearm in case he got stopped by the police.             Treena Louk

testified that she and her husband bought methamphetamine from the

Arey brothers and that she had seen Randolph carrying a firearm on

such occasions.     Jose Monjes testified that he bought and sold



     3
      The Arey brothers continued to buy methamphetamine from
others after Roadcap was arrested in 2001.

                                    5
methamphetamine for Timothy.                David Taylor testified that he

purchased methamphetamine from Timothy.               On one occasion, Taylor

saw Timothy with a revolver, which he said he kept nearby in case

the police showed up.

       Kathy      Arey,   Randolph’s      ex-wife,   testified   that   Randolph

obtained methamphetamine from his brother and from Roadcap. On two

occasions, the Arey brothers came to her house to break up larger

quantities of methamphetamine for distribution. She also testified

that Randolph carried a firearm with him when Roadcap delivered

drugs to the house. Rhonda Arey, Timothy’s ex-wife, testified that

her husband sold drugs to several people.             On one occasion, she saw

a device holding a handgun, mounted under the kitchen table,

pointed at the front door.          Timothy told her the firearm was under

the table for use in the event that a business deal went wrong.4

After their arrests, both brothers admitted to ATF agents that they

had sold methamphetamine.                Timothy also admitted that several

persons were selling drugs for him.

       Both Defendants testified at trial, and both claimed that they

only       sold   small   amounts   of    methamphetamine   to   support   their

personal habits.          The Defendants admitted to speaking with AFT

agents, but they denied being part of a conspiracy and denied

selling large quantities (pounds) of methamphetamine over a six-



       4
      Timothy also threatened to use this device, i.e. the handgun
mounted under the kitchen table, on his ex-wife.

                                           6
year period.       Both Defendants also admitted to collecting or

carrying   firearms,       but   denied   using    them    as     part    of   a    drug

trafficking operation.

      Prior to the jury deliberations, the trial court instructed

the jury on the applicable legal principles.                       On appeal, the

Defendants   challenge       the   instruction      relating      to     the   law    of

conspiracy, but they failed to object to this instruction at trial.

The jury convicted both Defendants on all counts, and they were

sentenced on June 1, 2006.         During their sentencing hearings, the

court, over the Defendants’ objections, first found that each Arey

brother    was    responsible       for       handling     nine     kilograms         of

methamphetamine over a six-year period.5                 Based on this finding,

each brother’s base offense level was enhanced from 32 to 36.                        The

court also found that both Defendants had perjured themselves at

trial and thus had obstructed justice.              Because of this finding,

each Arey brother’s base offense level was enhanced an additional

two   levels,    for   a   total   base       offense    level    of     38.       After

calculating the guidelines range and considering the 18 U.S.C.

§ 3553(a) factors, the court imposed a sentence totaling 535 months

for Randolph, which included a sentence of 235 months on Count One.

Timothy was sentenced to a total of 952 months in prison, which

included a sentence of 292 months on Count One.



      5
      The jury had found that the Count One conspiracy                               was
responsible for at least 500 grams of methamphetamine.

                                          7
     The   Defendants     have    timely    appealed,    and   we    possess

jurisdiction pursuant to 28 U.S.C. § 1291.



                                    II.

     First, in evaluating whether a jury verdict is supported by

sufficient evidence, we must sustain the verdict, “‘if there is

substantial   evidence,   taking    the    view   most   favorable   to   the

Government, to support it.’” United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc) (quoting Glasser v. United States,

315 U.S. 60, 80 (1942)).         Second, we review for plain error an

issue raised first on appeal and not properly preserved in the

district court.    See United States v. Olano, 507 U.S. 725, 736

(1993).    Third, we review a sentence to determine whether it is

within the statutorily prescribed range and if it is reasonable.

See United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006).




                                     8
                                III.

     The Defendants raise three primary contentions on appeal.6

First, they assert that there was insufficient evidence for the

jury to conclude (a) that they conspired to possess methamphetamine

with intent to distribute, and (b) that they possessed firearms in

furtherance of a drug trafficking crime.   Second, they assert that

the trial court improperly instructed the jury on the law of

conspiracy.    Third, they assert that the court erred in enhancing

their sentences on Count One on the basis of facts not found by the

jury.    We address these contentions in turn.



                                 A.

                                 1.

     The Defendants contend that the verdict on Count One was not

supported by sufficient evidence to prove a drug conspiracy because

the Government did not establish that a business agreement existed


     6
      The Defendants make two other contentions on appeal that we
summarily reject based on controlling precedent.       First, they
assert that they cannot be convicted for more than one violation of
18 U.S.C. § 924(c) arising out of the same predicate drug
trafficking crime. This assertion has previously been rejected by
us. See United States v. Camps, 32 F.3d 102, 107 (4th Cir. 1994)
(concluding that Government can obtain convictions for more than
one violation of § 924(c) that arise out of same predicate crime).
Second, the Defendants assert that Congress violated the
Constitution in its regulation of substances whose use did not
affect interstate commerce.    This assertion has been heretofore
raised before and rejected by the Supreme Court. See Gonzales v.
Raich, 545 U.S. 1, 9 (2005) (concluding that it is valid exercise
of Congress’s power to regulate, through Controlled Substance Act,
local cultivation and use of marijuana).

                                  9
between the brothers relating to the distribution of drugs.7                  To

secure    a   conviction     on   a   charge   of   conspiracy     to   possess

methamphetamine with intent to distribute, the Government must

first    prove   that   an   agreement   existed    among   the    alleged   co-

conspirators to possess and distribute methamphetamine. See United

States v. Wilson, 135 F.3d 291, 306 (4th Cir. 1998).              Because there

is sometimes a lack of direct evidence of an agreement among co-

conspirators, a conspiracy drug offense must often be proven by

circumstantial evidence. See United States v. Burgos, 94 F.3d 849,

857 (4th Cir. 1996) (en banc).           We have recognized that, in such

situations, “[c]ircumstantial evidence . . . may consist of a

defendant’s relationship with other members of the conspiracy, the

length of this association, the defendant’s attitude and conduct,

and the nature of the conspiracy.” Id. at 858. (internal quotation

marks omitted).

     Viewing the evidence in this case in the light most favorable

to the Government, there is more than ample evidence to establish

the Count One conspiracy charge.         Indeed, the Government presented

overwhelming evidence that the Arey brothers worked together and

with others to purchase, package, and sell large quantities of



     7
      On appeal, the Defendants focus on whether there was
sufficient evidence to determine if a conspiracy to possess
methamphetamine with intent to distribute existed between the two
brothers only.    They ignore the fact that there was evidence
establishing they were involved with other alleged co-conspirators,
as charged in Count One of the Indictment.

                                       10
methamphetamine.       Both Roadcap and Harold testified that the Arey

brothers had purchased illicit drugs from Roadcap and sold those

drugs for him.    Several other witnesses testified that they bought

illicit drugs from the Arey brothers and, on occasion, sold drugs

for them.      Although there was no formal or written agreement

between the alleged co-conspirators, none was necessary, and the

Government presented the jury with more than enough evidence for it

to reasonably conclude that each Arey brother was involved in the

Count One conspiracy, with others and with each other, to buy and

sell methamphetamine.

                                     2.

      The Defendants next contend that the jury verdict was not

supported by sufficient evidence to prove that they possessed

firearms “in furtherance of” a drug trafficking crime, as alleged

in Counts Three, Five, Six, Nine, and Ten.         To obtain convictions

on these charges, the Government was obliged to “present evidence

indicating that [a defendant’s] possession of a firearm furthered,

advanced, or helped forward a drug trafficking crime.”             United

States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).               We have

recognized that there are numerous ways that firearms might further

drug trafficking crimes, including, inter alia, lessening the

chance someone might steal the drugs or the profits derived from

the   drug   transactions,    and   preventing   drug   transactions   from

turning sour.    Id.


                                     11
     Viewing the evidence in the light most favorable to the

Government, we must readily conclude that sufficient evidence was

presented at trial on the “in furtherance of” a drug trafficking

crime element of these five counts.            The Government presented

several witnesses who testified that Randolph and Timothy often

carried firearms with them when they were dealing drugs.             These

witnesses testified that each Arey brother explained that they

carried weapons for use in the event their drug deals went wrong,

or in case the police showed up.       Given this evidence, a reasonable

jury was entitled to conclude that the Arey brothers used firearms

in furtherance of their drug trafficking activities.



                                   B.

     The Defendants next contend that the court did not properly

instruct the jurors on the conspiracy charge alleged in Count One.

Specifically, the Defendants assert that the court did not properly

advise the jury that the Defendants must have reached an agreement

between themselves or with other alleged co-conspirators in order

to be convicted of conspiracy to possess methamphetamine with the

intent to distribute.    Because the Defendants failed to object to

the instruction being complained of, we review this contention for

plain error.    In order to show plain error, “we must be able to (1)

identify   an   error,   (2)   which    is   plain,   (3)   which   affects

substantial rights, and (4) which seriously affects the fairness,


                                   12
integrity or public reputation of judicial proceedings.”         United

States v. Ryan-Webster, 353 F.3d 353, 363 (4th Cir. 2003) (internal

quotation marks omitted).

        When a defendant asserts on appeal that a jury instruction was

improper and unduly prejudicial, we must examine “whether, taken as

a whole, the instruction fairly states the controlling law.”

United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990).           Here,

the court, after correctly outlining the elements of an unlawful

conspiracy to the jury, went into a detailed explanation on the

controlling legal principles with regard to the charge in Count

One.8       Because the court fairly advised the jury on the controlling



        8
      In relevant part, the court advised the jury on the following
legal principles with respect to Count One:

        The agreement or understanding need not be an express or
        formal agreement or be in writing or cover all of the
        details of how it is to be carried out.       Nor is it
        necessary that the members have directly stated between
        themselves the details or purposes of the scheme.

             . . .    But a person may join in an agreement or
        understanding, as required by this element, without
        knowing all the details of the agreement or understanding
        and without knowing who all the members are.

               . . . .

             In determining whether the alleged conspiracy
        existed, you may consider the actions and statements of
        all the alleged participants.     The agreement may be
        inferred from the circumstances and conduct of all the
        alleged participants.

J.A. 612-14. (Citations to “J.A.    ” refer to the Joint Appendix
filed by the parties in this appeal.)

                                     13
legal principles on the conspiracy issue, there was no error in

this regard, and thus our plain error analysis need proceed no

further.



                                 C.

     Lastly, the Defendants contend that their sentences were

imposed in violation of the Sixth Amendment, because the court made

findings of fact that increased their guidelines ranges on Count

One beyond what they would have been on the basis of the jury

verdict alone.     As a result of the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220 (2005), a sentencing court

cannot engage in judicial factfinding that results in a sentence

that exceeds the statutory maximum authorized by the jury verdict

alone.     However, it is not a Sixth Amendment violation for a

sentencing court to make the findings of fact necessary to properly

calculate a defendant’s advisory guidelines range.       See United

States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006).

     In this case, the sentencing court properly enhanced the

Defendants’ guidelines ranges on Count One based on its findings

that they had committed perjury at trial, and that they were each

responsible for handling nine kilograms of methamphetamine over a

six-year period.     Timothy was then sentenced to 292 months in

prison on Count One while Randolph was sentenced to 240 months.

Count One — which charged the Arey brothers with being involved in


                                 14
a conspiracy to distribute 500 grams or more of methamphetamine —

carries a statutory sentencing range of ten years to life.   See 21

U.S.C. § 841(b)(1)(A). Because the Defendants’ sentences were each

below the statutory maximum of life in prison, no Sixth Amendment

violations occurred here.    As a result, this contention of the

Defendants must also be rejected.



                               IV.

     Pursuant to the foregoing, we reject each of the Defendants’

appellate contentions and affirm their convictions and sentences in

the district court.9


                                                          AFFIRMED




     9
      We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid in the decisional process.

                                15
