                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4391



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

FREDRICK  ABRAHAM  MCKENZIE, a/k/a  Camron
Darnell Lewis, a/k/a Jamaican Vince, a/k/a
Vince,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-04-556)


Submitted:   November 30, 2005            Decided:   January 10, 2006


Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


John Terrence Mobley, Columbia, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Alfred W.
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Fredrick Abraham McKenzie pled guilty to possession of

five kilograms or more of cocaine with intent to distribute, 21

U.S.C. § 846 (2000), and was sentenced to a term of 264 months

imprisonment.   McKenzie appeals his sentence, asserting that the

district court clearly erred in calculating his guideline range and

that his sentence under the remedial scheme set out in United

States v. Booker, 125 S. Ct. 738 (2005), was imposed in violation

of the Ex Post Facto Clause and the Confrontation Clause.          For the

reasons explained below, we affirm in part, vacate in part, and

remand for resentencing.

           The factual basis for McKenzie’s guilty plea established

that he had supplied over twenty kilograms of cocaine to at least

five   cooperating   defendants   in   Horry   County,   South   Carolina,

between 2001 and his arrest in May 2004.         The presentence report

summarized the information they provided about his cocaine sales to

crack cocaine dealers and his use of a firearm.            McKenzie also

cooked a quarter kilogram (250 grams) of cocaine into crack on one

occasion and Milton Gause, one of the cooperating defendants,

bought 2.5 ounces (70.88 grams) of crack from McKenzie ten to

fifteen times (ten times = 708.75 grams).            McKenzie admitted

cooking cocaine into crack on several occasions for Gause.

           At the sentencing hearing in March 2005, the district

court overruled McKenzie’s objection to the use of the guidelines


                                  - 2 -
as unconstitutional; calculated a base offense level of 38 under

U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (2003) (1.5 kgs of

crack or more) on the ground that it was reasonably foreseeable

that his customers would convert the cocaine they bought from him

to   crack;      approved   a   two-level    weapon    enhancement,      USSG

§ 2D1.1(b)(1), a two-level aggravated role adjustment under USSG

§    3B1.1(c);     a   three-level     adjustment     for   acceptance     of

responsibility, USSG § 3E1.1; and determined that McKenzie was not

eligible for a reduction under the safety valve provision in

§ 2D1.1(b)(6).     The resulting advisory guideline range was 262-327

months.   The court imposed a sentence of 264 months.

           On appeal, McKenzie first argues that the district court

clearly erred in using crack to calculate his base offense level.

United States v. Lamarr, 75 F.3d 964, 972 (4th Cir. 1996) (standard

of review).      A defendant involved in a joint criminal undertaking

may be held responsible for relevant conduct that includes all

reasonably foreseeable conduct of his co-conspirators that is in

furtherance of the conspiracy.        USSG § 1B1.3(a)(1)(B).    When there

is no drug seizure or the drug seized does not reflect the scale of

the offense, the sentencing court should approximate the amount of

the drugs for which the defendant is responsible.            USSG § 2D1.1,

comment. (n.12).

           McKenzie argues that his customers’ conversion of the

cocaine he sold them to crack was not reasonably foreseeable to


                                     - 3 -
him.     However, McKenzie did not challenge the statement in the

presentence report that his customers were crack dealers, and

because he lived in the community for a while, the district court

could infer that he was aware that his customers were selling

crack.    Moreover, undisputed information in the presentence report

established that McKenzie had personal involvement with almost a

kilogram of crack.      We therefore conclude that the district court

did    not   clearly   err   in   (1)    finding   that   it   was   reasonably

foreseeable to McKenzie that his co-conspirators would convert the

cocaine he sold them to crack and (2) holding him responsible for

at least 1.5 kilograms of crack.

             McKenzie is on more solid ground in his challenge to the

district court’s determination that he was a leader, organizer,

manager or supervisor in the offense.           This issue is also reviewed

for clear error.       United States v. Sayles, 296 F.3d 219, 224 (4th

Cir. 2002).     McKenzie asserts that the two-level role adjustment

was unsupported because there was no evidence in the record that he

did any more than sell cocaine.             We agree.     McKenzie correctly

argues that his case is similar to Sayles, 296 F.3d at 224-27

(refusing to uphold two-level role adjustment where defendants

bought and sold large amounts of cocaine but the government did not

present evidence of any factors listed in Application Note 4 to

USSG § 3B1.1 that indicate an aggravated role).




                                        - 4 -
              For the adjustment to be given because a defendant was a

leader,      the   defendant   must    have    controlled    others.      United

States v. Carter, 300 F.3d 415, 426 (4th Cir. 2002) (defendants

were   principal     suppliers   of    crack   to   street     dealers   and   two

witnesses testified that more than ten people worked for them).                  A

defendant is an organizer if he coordinates others to promote the

criminal activity.       United States v. Picanso, 333 F.3d 21, 23-24

(1st Cir. 2003) (wholesale drug dealer was primary drug supplier

and boasted that he could shut down co-defendant’s distribution if

he chose).     A defendant who is deemed a manager or supervisor must

have directed the activities of others.             United States v. Turner,

319 F.3d 716, 725 (5th Cir. 2003) (defendant directed another who

sent and received packages and stored marijuana for him).                       In

McKenzie’s case, the only evidence offered in support of the role

adjustment was his sale of large quantities of cocaine and the

government acknowledged at sentencing that McKenzie was only one of

a   number    of   suppliers   to     the   local   dealers.      Although     the

government asserted and the district court found that McKenzie

recruited others, no specific information supported the finding.

              On the record before us, we conclude that the district

court clearly erred in giving McKenzie a role adjustment. Although

the sentencing guidelines are no longer mandatory, Booker makes

clear that a sentencing court must still “consult [the] Guidelines

and take them into account when sentencing.”                125 S. Ct. at 767.


                                       - 5 -
Under United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), the

district court should first determine the appropriate sentencing

range under the guidelines, making all factual findings appropriate

for that determination.           401 F.3d at 546.         The court should

consider   this    sentencing     range    along   with   the   other   factors

described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), before

imposing a sentence that is “within the statutorily prescribed

range and . . . reasonable.”            Id.   In sentencing McKenzie, the

district court did not consider “the appropriate guideline range.”

            McKenzie next contends that his sentence was imposed in

violation of the Ex Post Facto Clause because, by making the

guidelines    advisory,     Booker   effectively     raised     the   statutory

maximum sentence from the top of the applicable guideline range (as

Booker held it was previously), to the maximum penalty allowed

under the statute.        We find this claim to be without merit.          See

United States v. Jamison, 416 F.3d 538 (7th Cir. 2005); United

States v. Lata, 415 F.3d 107 (1st Cir. 2005); United States v.

Scroggins, 411 F.3d 572 (5th Cir. 2005); United States v. Duncan,

400 F.3d 1297, 1306-08 (11th Cir.), cert. denied, 126 S. Ct. 432

(2005).

             Finally, citing Crawford v. Washington, 541 U.S. 36

(2004),    which   held    that   the     Confrontation    Clause     prohibits

admission of testimonial statements that are not subject to cross-

examination, McKenzie contends that the Confrontation Clause should


                                     - 6 -
apply to the district court’s consideration of information in the

presentence report that increased his guideline sentence.   We find

no merit in his position.    See United States v. Chau, 426 F.3d

1318, 1323 (11th Cir. 2005); United States v. Roche, 415 F.3d 614,

618 (7th Cir.), cert. denied, ___ U.S. ___, 2005 WL 3027861 (U.S.

Nov. 14, 2005) (No. 05-7031); United States v. Luciano, 414 F.3d

174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 239,

243-44 (2d Cir. 2005).

          For the reasons discussed, we vacate the sentence and

remand the case for resentencing without the aggravated role

adjustment.   We affirm the sentence in all other respects.     We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                  AFFIRMED IN PART,
                                      VACATED IN PART, AND REMANDED




                              - 7 -
