                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 12-4522


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

ALTON BENN,

               Defendant – Appellant.



                            No. 12-4803


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

SEAN DARNELL JEFFRIES,

               Defendant – Appellant.



                            No. 12-4804


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.
ROBERT EUGENE POOLE,

                Defendant – Appellant.



                            No. 12-4851


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

KEVIN GORDON HAITH,

                Defendant – Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge.       (1:11-cr-00127-TDS-2; 1:11-cr-00127-TDS-1;
1:11-cr-00127-TDS-4; 1:11-cr-00127-TDS-3)


Argued:   April 11, 2014                      Decided:   May 21, 2014


Before KING, GREGORY, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Sandra Barrett, Asheville, North Carolina; Robert Lynn
McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, LLP, Greensboro,
North Carolina; John Clark Fischer, RANDOLPH & FISCHER, Winston-
Salem, North Carolina; Thomas Hilton Johnson, Jr., GRAY JOHNSON
BLACKMON LEE & LAWSON, LLP,     Greensboro, North Carolina, for
Appellants.   Lisa Blue Boggs, Stephen Thomas Inman, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee. ON BRIEF: Ripley Rand, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.


                                 2
Unpublished opinions are not binding precedent in this circuit.




                                3
PER CURIAM:

              In    this     multi-defendant        appeal,    we    are    faced      with

several assignments of error.                 Four co-defendants -- Alton Benn,

Sean Darnell Jeffries, Robert Eugene Poole, and Kevin Gordon

Haith (collectively, “Appellants”) -- were tried by a jury and

convicted      of     conspiracy         to    distribute      crack       cocaine      and

unlawfully possess cocaine hydrochloride with the intent to make

crack cocaine.          Appellants Poole and Haith were also convicted

of related firearm charges.                   Following trial, Appellants were

sentenced     to    terms       of   imprisonment       varying     from    114   to    440

months.

              Appellants         claim    their     conspiracy      convictions        were

based on insufficient evidence; the testimony of an unindicted

co-defendant, who testified pursuant to an immunity agreement,

was unreliable; and the Government’s expert witness was neither

timely noticed, nor qualified.                    Appellants Benn, Jeffries, and

Haith challenge their sentences on various grounds, including

that   they    were     in      contravention      of   the   recent      Supreme    Court

decision      Alleyne      v.    United    States,      133   S.    Ct.    2151   (2013).

Appellant Haith also challenges his career offender and armed

career criminal designations as violative of our decision in

United States v. Davis, 720 F.3d 215 (4th Cir. 2013).                             For the

reasons that follow, we affirm.



                                              4
                                         I.

                                         A.

            The facts underlying this appeal are presented in the

light most favorable to the prevailing party at trial -- the

Government.    See United States v. Lespier, 725 F.3d 437, 440 n.2

(4th Cir. 2013).       The Greensboro Police Department (“GPD”) began

an investigation into a purported crack cocaine conspiracy in

Greensboro,    North     Carolina,       in   2007.       The    conspiracy      was

believed to be run by a distribution organization known as the

“Bundy     Boys.”       GPD   Narcotics        Officer    R.L.      Alston      began

investigating the alleged leader of the Bundy Boys, Appellant

Benn (a.k.a. “Bundy” or “B”).             Alston learned that, along with

Appellant     Benn,     Leonard    Gary       Williams    (a.k.a.       “G”),     and

Appellants Poole (a.k.a. “Pooh”), Jeffries (a.k.a. “Fuzz”), and

Haith    (a.k.a.      “Smoke”)    were    involved       in   the      Bundy    Boys’

distribution of crack cocaine between 2006 and 2010.

            As part of his investigation, Officer Alston conducted

surveillance    at     Appellant     Benn’s     residence,       and     saw    other

members of the Bundy Boys coming and going on a regular basis.

On May 24, 2007, Officer Alston conducted a trash pull at the

residence and found a wrapper normally used to wrap kilograms of

cocaine.      After field-testing, it was revealed that the wrapper

contained Appellant Benn’s left palm print, and the residue on

the wrapper tested positive for powder cocaine.                     On August 30,

                                         5
2007, Officer Alston conducted another trash pull at the house,

and found a white powder substance inside a trash bag.                               That

substance      also     field-tested      positive      for     cocaine.          Officer

Alston continued periodic surveillance of Appellant Benn’s house

from    2007-09.         During    this    time,       the    GPD    also     conducted

searches,      and    sometimes     arrests,      at     around      a    dozen     other

residences in Greensboro, each of which had some link to the

Bundy Boys.

                                          1.

                                  “The Bundy Boys”

              At trial, both Tashee Mumford and Williams explained

how they came to know the “Bundy Boys” and the inner-workings of

their organization.

                                          a.

                           Tashee Mumford’s Testimony

              Mumford testified that Appellant Haith introduced her

to Williams and Appellant Benn, and through those individuals,

she     met    Appellant     Jeffries.         She     described         Williams     and

Appellants Benn and Jeffries as the “Bundy Boys.”                             She also

testified that Appellant Poole was “with [Williams]” and would

“hold    the    drugs    sometimes,”       that    is,       “keep   [them]       safely,

stor[e]” them “in case . . . you need to go get some more or run




                                           6
out.”       J.A. 1420-21. 1     In addition, Appellant Poole would “keep

[the drugs] at his house, or whatever location he was in, for

the next time somebody needs some.”              Id. at 1421.

               During her association with the Bundy Boys, Mumford

sold crack cocaine at a house on Bragg Street in Greensboro with

Appellant Haith, and those drugs were brought there by Appellant

Benn or Williams.           She said that after the drugs were sold, she

or Appellant Haith would give the money to Appellant Benn.                        She

and Appellant Haith also sold crack from a house on Charlotte

Street.        Later,   Mumford   moved       away   from   Appellant    Haith   and

started selling drugs at an apartment on Waugh Street.                           She

explained that at that time, Williams and Appellants Benn and

Jeffries were on “the same team.”              J.A. 1432.

               Mumford described the structure of the Bundy Boys as

follows:

     Bundy [Appellant Benn] would be first, or the head,
     person and then you have G [Williams] under him. Then
     you have, like, maybe Fuzz [Appellant Jeffries] under
     G, and then you will have all other workers or the
     people that was under them . . . who would run the
     houses, and then you would have us, the workers, that
     are in the house. So, basically, The Bundy Boys were
     the head of the whole operation.

J.A. 1457.         Mumford explained that if Appellant Benn could not

bring       them   drugs,    Williams   would,       and    when   he   could    not,

        1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                          7
Appellant Jeffries would.      She said sometimes Appellant Jeffries

would “run a house.”       Id. at 1458.    According to Mumford, after

Williams was arrested, as explained below, Appellant Jeffries

took over Williams’s duties.

                                   b.

                   Leonard Gary Williams’s Testimony

          Williams was arrested for selling crack cocaine with

the Bundy Boys in April 2009.       GPD officers raided his house on

Oak Street and found crack cocaine and a .380 handgun.              Williams

did not remain in jail long, however, because Appellant Benn

bonded him out.     Williams continued to sell drugs to pay for his

lawyer.   He sold crack until he was again arrested in February

2010 by Officer Alston.       After this arrest, he agreed to speak

to federal agents in exchange for immunity.

          Williams     explained   that    he   met   Appellant     Benn   in

Connecticut   20   years   previously,    and   the   two   moved   to   North

Carolina together around 1996.          He said he met Appellant Haith

in North Carolina in 1996, and Appellants Jeffries and Poole in

North Carolina around 2004.        From 2006 to his arrest in 2010,

Williams’s main source of income was selling crack cocaine.                He

and Appellant Benn would travel to purchase powder cocaine, and

afterwards, Appellant Benn would cook it into crack cocaine.

          Williams testified that the crack cooked by Appellant

Benn would be sold at Pearson Street, Holt Street, McConnell

                                    8
Road, Bragg Street, Charlotte Street, Winston Street, and Duke

Street in Greensboro.           He testified that Appellant Poole “might

sell very little, but he would be the doorman sometime, and he

will either ride with me or Mr. Benn and hold the drugs while

they were delivered . . . [j]ust in case the police stopped, he

would be the one who [would] take the charge or either run with

it.”    J.A. 206.

            As to the organizational structure of the Bundy Boys,

Williams testified,

       [W]hen I first came, I had to work my way up. I ain’t
       just start becoming the one who delivered the drugs.
       I had to work the window, watch out for the police. I
       had to sell the crack cocaine, and then I move up into
       the one that would help bag up the crack cocaine and
       deliver it.    . . .   It was like Mr. Benn was the
       president, I was the vice president, and everybody
       else was like the workers.     . . .     Sometime [the
       workers] would switch up from selling to watching the
       window or the door. That’s about it.

J.A. 205.     Williams explained that he stopped being the “vice

president” sometime in 2008.             At that time, “Mr. Benn and Mr.

Jeffries became more closer than me and Mr. Benn.”                Id. at 247.

                                         2.

                           Transporting Drugs/Money

            According      to    Williams,    Appellant   Benn     made   powder

cocaine purchases in Asheboro, Winston-Salem, and Atlanta.                     He

and    Appellant    Benn   made   four   trips   to   Asheboro;    and    he   and

Appellants Benn, Jeffries, and Poole made three to four trips to


                                         9
Winston-Salem, each time to buy powder cocaine.                 Once they were

back   in   Greensboro,        they    would   cook   the   powder      at      either

Appellant Benn’s, Appellant Jeffries’s, or Williams’s residence,

and it would be bagged for storage.              Many times, Williams would

deliver the drugs to Greensboro crack houses and collect the

money and bring it to Appellant Benn.                   He explained that the

crack houses ran day and night, seven days a week.

            Williams       testified    that   around    2007-08,     he     went   to

Atlanta three times to buy powder cocaine, and the first time,

he   went   with    Appellants    Benn,    Jeffries,     and   Poole;      a    worker

named Helen Grier; and two other individuals.                  Their intention

was to bring back three kilograms of powder cocaine.                       Williams,

Appellants Benn, Jeffries, and others contributed money to make

this purchase, but they only ended up with one “good” kilogram.

J.A. 208.       Thus, they returned to Atlanta, bought more powder

cocaine, sold it in Greensboro, and obtained the proper amount

to pay back those who had contributed money.

            On one occasion in 2008, Williams did not make the

trip to Georgia, but Appellant Benn told him about it.                          During

that    trip,      law    enforcement     stopped     the   vehicle        in    which

Appellants Benn, Jeffries, and Poole; Grier; and Barry Shamel

were traveling.          Williams explained,

       They went to purchase 8 kilos of cocaine; and after
       purchasing the 8 kilos of cocaine, . . . they was
       followed by some police in pick-up trucks. It turned

                                         10
     into a high-speed chase and Mr. Benn got distant
     enough from the police. . . . Shamel jumped out with
     the black duffel bag with the 8 kilos of cocaine in it
     and went and buried them . . . [t]hen after that, the
     police closed in on Mr. Benn and Mr. Jeffries and Miss
     Grier, and they took Mr. Benn to jail for questioning.
     . . .    Poole got out [of the vehicle] a little bit
     farther after [Shamel] got out[.]

J.A. 214-15.       Grier testified that when Appellant Poole jumped

out of the vehicle after Shamel, he carried a backpack full of

materials used to cook crack.                    At Appellant Benn’s direction,

Williams wired $100 to him so that Shamel could get a hotel room

after    he    buried       the    drugs.          Once   everyone       returned       to

Greensboro, they took the eight kilograms of powder cocaine and

buried   it    near     Appellant     Benn’s       residence.         The    next      day,

Appellant Benn cooked the powder cocaine into crack cocaine.

              Later    in   2008,   Appellants       Benn   and       Jeffries,     along

with a third man, made a trip to Texas to purchase two kilograms

of powder cocaine.          Appellant Benn called Williams and told him

he had been stopped by the police, who took their money as soon

as they crossed into Texas.              Major Wade Robinson of the City of

Orange   Police       Department    in   Texas      performed     a    search     of    the

vehicle and found $50,000 in cash in a black bag.                           DEA Special

Agent Timothy Duriso testified that Appellant Jeffries claimed

the money was his, but he was unable to explain the source of

the cash.       Williams had earlier testified that the money was

going to be used to purchase two kilograms of powder cocaine.


                                            11
            In addition, GPD Detective Eric Goodykoontz testified

that   on   May    20,     2009,   police    stopped   a    vehicle   driven     by

Appellant     Benn    on     English   Road,    near       Phillips   Avenue     in

Greensboro.       Appellant Benn was with Appellant Poole.             Appellant

Poole was searched, and officers discovered scales and a glass

smoking device in his shirt pocket.                Upon further searching,

officers discovered that Appellant Poole was hiding 1/2 ounce,

or 14 grams, of crack cocaine in his buttocks.

                                        B.

            On    August     30,   2011,    Appellants     were   charged   in    a

superseding indictment, as follows:

       Count One - All Appellants conspired with Williams and
       others to distribute 280 grams or more of crack
       cocaine, in violation of 21 U.S.C. § 841(a)(1)
       (“Object One”), and to unlawfully possess 5 kilograms
       or more of a mixture containing a detectable amount of
       cocaine hydrochloride with the intent to make crack
       cocaine (“Object Two”), all in violation of 21 U.S.C.
       §§ 846, 841(b)(1)(A).

       Count Two - Appellant Haith possessed a handgun and
       rifle in furtherance of a federal drug trafficking
       crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i).

       Count Three - Appellant Haith was a felon in
       possession of a firearm, in violation of 18 U.S.C.
       §§ 922(g)(1) and 924(a)(2).

       Count Four - Appellant Jeffries possessed with the
       intent to distribute 11.5 grams of crack cocaine, in
       violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

       Count Five - Appellant Jeffries possessed a 9mm semi-
       automatic handgun, a Smith and Wesson 10mm semi-
       automatic handgun, and a 12 gauge “Street Sweeper”
       shotgun in furtherance of the drug trafficking crime

                                        12
      mentioned in Count Four, in violation of 18 U.S.C.
      § 924(c)(1)(a)(i) and (c)(1)(B)(ii).

              Appellants      proceeded       to    trial,    with    jury   selection

beginning on February 13, 2012.                   The Government’s case-in-chief

began on February 14, 2012, and continued over the course of

nine days, to February 27, 2012.                     The Government rested, and

each Appellant moved for judgment of acquittal per Rule 29 of

the Federal Rules of Criminal Procedure.                          The district court

granted Appellant Haith’s motion to dismiss Object Two of Count

One   (the     second   prong   of     the     conspiracy     count    --    possessing

cocaine      hydrochloride      with    the        intent    to    manufacture   crack

cocaine), but denied the other aspects of Haith’s motion and

denied    in    their    entirety       the       motions    of    Appellants    Benn,

Jeffries,      and   Poole.      None     of      the   Appellants     presented   any

evidence in their defense.              On March 5, 2012, the jury found

Appellants guilty of the charges remaining against each of them,

as follows:

      Count One, Object One: The jury found that Appellants
      Benn, Jeffries, and Haith conspired to distribute 280
      grams or more of crack cocaine, while finding that
      Appellant Poole conspired to distribute more than 28
      but less than 280 grams.

      Count One, Object Two: The jury found that Appellant
      Benn had conspired to possess five kilograms or more
      of   cocaine   hydrochloride   with  the   intent   to
      manufacture crack cocaine, while Jeffries possessed
      500 grams but less than five kilograms of cocaine
      hydrochloride, and Poole possessed less than 500 grams
      of   cocaine   hydrochloride   with  the   intent   to
      manufacture crack.

                                             13
     Count Three: The jury found Appellant Haith guilty of
     being a felon in possession of a firearm, in violation
     of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

     Count Four:     The jury found Appellant Jeffries
     possessed with the intent to distribute 11.5 grams of
     crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
     and (b)(1)(B).

     Count Five – The jury found that Appellant Jeffries
     possessed a 9mm semi-automatic handgun, a Smith and
     Wesson 10mm semi-automatic handgun, and a 12 gauge
     “Street Sweeper” shotgun in furtherance of the drug
     trafficking    crime mentioned  in  Count   Four,  in
     violation   of    18 U.S.C.  §§  924(c)(1)(a)(i)  and
     (c)(1)(B)(ii). 2

          The district court held separate sentencing hearings

for each defendant:

     Appellant Benn – Benn’s base offense level was 38,
     which is the level for offenses involving 8.4
     kilograms or more of cocaine base. See United States
     Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”)
     §§ 2D1.1(a)(5), (c)(1) (2011). After enhancements for
     possessing a firearm, maintaining a premises for the
     purpose of making and distributing drugs, committing
     the offense as a pattern of conduct used as his
     livelihood, and being an organizer or leader of the
     conspiracy, his offense level was 48, which was
     reduced to 43 pursuant to Chapter 5, part A of the
     Guidelines.   With a criminal history category of III,
     his Guidelines range was life in prison.           The
     statutory provision was 10 years to life.          The
     district court varied downward, and assigned a term of
     imprisonment of 440 months.


     2
       The jury found that the “Street Sweeper” was a destructive
device pursuant to 18 U.S.C. § 924(c)(1)(B)(ii), but also that
Appellant Jeffries did not know the characteristics of the
Street Sweeper that caused it to be a “destructive device.”
J.A. 2012.



                               14
     Appellant Jeffries – Jeffries’s base offense level was
     38, for an offense involving 8.4 kilograms or more of
     cocaine base.    See U.S.S.G. §§ 2D1.1(a)(5), (c)(1)
     (2011).   He received two enhancements, which he does
     not dispute, plus one 3-level increase for being a
     manager or supervisor (but not an organizer or leader)
     of the conspiracy, which he disputes in this appeal.
     See U.S.S.G. § 3B1.1(b) (2011).      These adjustments
     took his offense level to 45, which was reduced to 43
     pursuant to Chapter 5, part A of the Sentencing
     Guidelines.   With a criminal history category of II,
     his Guideline range was life in prison as to Count
     One, and 60 months as to Count Five, to be served
     consecutively. The district court varied downward and
     imposed a sentence of 300 months on Count One; 240
     months on Count Four, to be served concurrently; and
     60 months on Count Five, to be served consecutively,
     for a total of 360 months in prison.

     Appellant Haith - Haith’s base offense level was 38,
     for an offense involving 8.4 kilograms or more of
     cocaine base.    See U.S.S.G. §§ 2D1.1(a)(5), (c)(1)
     (2011).     He   received   a    2-level  increase  for
     maintaining    a   premises    for    the  purpose   of
     manufacturing and distributing drugs, and a 3-level
     increase for being a manager or supervisor (but not an
     organizer or leader) of the conspiracy.    This brought
     his offense level to 43.     Haith was designated as a
     career offender and armed career criminal.          His
     Guideline range as to Counts One and Three was life in
     prison, and for Count Two, it was 60 months, to run
     consecutively.   The district court sentenced him to
     downwardly variant 309-month concurrent sentences on
     Counts One and Three, and a 60-month consecutive
     sentence on Count Two, for a total of 369 months in
     prison.

     Appellant   Poole  -   The  district   court sentenced
     Appellant Poole to 114 months in prison. Poole is not
     challenging his sentence in this appeal.

          Appellants   filed   timely   notices   of   appeal,   and   the

appeals were consolidated.      We held oral argument on Friday,

April 11, 2014, in Charleston, South Carolina.


                                  15
                                           II.

            All Appellants challenge their conspiracy convictions

as unsupported by sufficient evidence; and Appellants Benn and

Jeffries contend that the testimony of Williams was “inherently

unreliable.”       Appellants’ Br. 2. 3

            A     jury   verdict      must    be    sustained        “if,    viewing    the

evidence in the light most favorable to the prosecution, the

verdict is supported by substantial evidence.”                        United States v.

Smith, 451 F.3d 209, 216 (4th Cir. 2006) (internal quotation

marks omitted).          “Substantial evidence” is defined as “evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”               Id. (internal quotation marks omitted).

Reversal for insufficient evidence “is reserved for the rare

case ‘where the prosecution’s failure is clear.’”                           United States

v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citing Burks v.

United States, 437 U.S. 1, 17 (1978)).

            To support a conspiracy conviction, the jury must have

believed    beyond       a    reasonable      doubt      that    (1)    there     was   an

agreement    between         the   defendant       and   one    or   more     persons    to

possess with the intent to distribute cocaine base (Count One,

Object    One),    or    to    possess   hydrochloride          with    the    intent    to

     3
         Appellants filed a joint opening brief in this case.



                                             16
manufacture       cocaine      base      (Count    One,    Object        Two);    (2)       the

defendant     knew      of    the     conspiracy;         and     (3)     the    defendant

knowingly and voluntarily became part of the conspiracy.                                     See

United States v. Williams, 632 F.3d 129, 135 (4th Cir. 2011).

After a conspiracy is shown to exist, “the evidence need only

establish     a    slight     connection        between    the     defendant      and        the

conspiracy to support conviction.”                 United States v. Kellam, 568

F.3d   125,       139   (4th     Cir.      2009)    (internal           quotation          marks

omitted).     Indeed, “[e]vidence of a buy-sell transaction coupled

with a substantial quantity of drugs, would support a reasonable

inference     that      the     parties      were     coconspirators,”                as     can

“evidence of continuing relationships and repeated transactions

. . ., especially when coupled with substantial quantities of

drugs.”     United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008) (internal quotation marks omitted) (alteration omitted).

            Having      independently        reviewed      the     record,       we    reject

each   of   the    Appellants’        arguments      on    this     point.        We       find

sufficient evidence from numerous witnesses that each Appellant

made an agreement with at least one of the others to commit the

charged crimes, that each Appellant knew of the conspiracy, and

that each Appellant knowingly and voluntarily became part of the

conspiracy.

            In     addition,        to    the     extent        Appellants       Benn       and

Jeffries suggest that Williams’s testimony obtained pursuant to

                                            17
an immunity agreement is per se questionable, they are asking

this court to make a credibility determination on appeal, but

credibility determinations “are within the sole province of the

jury and are not susceptible to judicial review.”                     United States

v.   Palacios,    677    F.3d    234,     248    (4th   Cir.    2012)     (internal

quotation marks omitted); see also United States v. Smith, 30

F.3d 568, 571-72 (4th Cir. 1994) (rejecting a similar claim that

the government’s evidence was “somehow tainted” because it came

from   persons    who     were    granted        immunity      and    signed   plea

agreements in exchange for substantial assistance).

           For    these    reasons,        we    conclude      that     Appellants’

conspiracy convictions were supported by substantial evidence.

                                        III.

           Appellants Benn, Jeffries, and Haith challenge their

sentences for various reasons.                We discuss each of Appellants’

arguments in turn.

                                        A.

                                 Appellant Benn

           As    set    forth    above,    Appellant     Benn’s       base   offense

level was 38, which is the level for offenses involving 8.4

kilograms or more of cocaine base.              See U.S.S.G. §§ 2D1.1(a)(5),

(c)(1) (2011).     Appellant Benn contends that, although the jury

found him guilty of conspiring to distribute more than 280 grams

of crack and possessing more than 5 kilograms of cocaine powder,

                                         18
and the district court sentenced Appellant Benn based on more

than 8.4 (specifically, 21.46) kilograms of crack, “in all its

searches     and    seizures,     authorities      had    confiscated     only     91

verifiable grams of [crack cocaine], and not all of that could

clearly be attributed to the alleged conspiracy.”                      Appellants’

Br. 20.

               The district court’s determination of drug quantities

for    sentencing     purposes    is    reviewed    for     clear    error.       See

Kellam, 568 F.3d at 147.               At sentencing, the government must

prove drug quantity by a preponderance of the evidence.                       See id.

A district court “may impose a sentence based on a drug quantity

determination greater than that found by the jury so long as the

sentence does not exceed the statutory maximum of the convicted

offense and the district court’s calculation is supported by

sufficient evidence.”         United States v. Young, 609 F.3d 348, 357

(4th    Cir.    2010)     (internal     quotation        marks    omitted).        “A

defendant’s        Base    Offense     Level    under      the      Guidelines     is

determined by the amount of drugs reasonably foreseeable to him

within the scope of his unlawful agreement.”                     United States v.

Lamarr, 75 F.3d 964, 972 (4th Cir. 1996) (internal quotation

marks omitted).

            The     trial    evidence     and   the      record     provide     ample

support for the district court’s drug quantity finding of 21.46

kilograms.         The    court   first    considered      the    trips   made     to

                                          19
Atlanta, Texas, and other locations in North Carolina and used

the alleged quantities of powder cocaine obtained on those trips

and converted them to the crack equivalent, since the evidence

at trial suggested the powder was to be used to make crack.           The

court concluded, “from the Atlanta trips of 11 kilos and then 6

kilos from Winston-Salem, five from Asheboro, that should be a

total of 22 kilos.      . . .    Adding [the 2 kilos sought on the

Texas trip], I have a total of 24 kilos of powder cocaine.”

J.A.   2119.    The   court   then   explained,   “[t]he   evidence   was

consistent throughout the trial that the only purpose for the

powder cocaine was to convert it into crack cocaine for the

purposes of resale, so based on the conversion ratio of .894,

that would convert . . . [to] 21.46 kilos of crack cocaine.”

Id.

           Alternatively, the court explained,

       [I]f you look at the sales of cocaine from the various
       houses, a conservative estimate, . . . is, 10 grams a
       day for each house, and the testimony was the houses
       ran 24 hours a day, seven days a week. That would be
       3.65 kilos over a three year period of 2005 to 2007.

       Also, the testimony that I find credible was, that
       [Jacqueline Adams, a worker] also collected packages
       from Mr. Benn and five gram packs, 1 gram in each
       broken out pack, four in a bundle, so 5 grams times
       four is 20 grams. That would be 1.6 kilos.

       Further, according to Mr. [Ronald] Duff’s testimony,
       and I find his testimony credible, 15 grams a day from
       the Brag[g Street] house, would come to 3.6 kilos for
       the eight to nine month period that he testified to.


                                     20
       That alone, is 8.85 kilos of crack cocaine, which is
       above the 8.4 kilograms of record level 38 . . . .

       In any event, Ms. Grier also testified to additional
       sales, which in a good week would be 40 grams, which
       it would be an additional up to 2 kilos. Ms. Mumford
       also had sales for three and a half years, even if she
       is selling 1 gram. As the Government indicated, that
       would be 1.2 kilos.   All of that would be well above
       the 8.4 kilograms, so on either way of looking at the
       evidence, a minimum of 8.4 kilograms of crack cocaine
       or cocaine base is attributable, I believe, to Mr.
       Benn in this case.

J.A. 2120-21.

             The district court did not clearly err in determining

that these amounts were “reasonably foreseeable to [Appellant

Benn] within the scope of” the conspiracy.                Lamarr, 75 F.3d at

972.    In any event, the district court varied downward from the

life    sentence   and   sentenced     Appellant   Benn   to   440    months    in

prison.      For   these    reasons,    Appellant    Benn’s    drug    quantity

argument fails.

                                       B.

                             Appellant Jeffries

             Appellant     Jeffries    raises    challenges    both     to     the

quantity of drugs attributed to him for sentencing purposes, and

to     the   sentencing     enhancement     he     received    for     being    a

manager/supervisor of the conspiracy.




                                       21
                                              1.

                                     Drug Quantities

               Appellant Jeffries contends that the district court

assigned drug quantities to him “that had been attributed to Mr.

Benn and his independent operations” and “[t]he totality of the

evidence does not show a direct connection between Mr. Jeffries

and the drug activities of Mr. Benn at the time Jeffries was

seen.”       Appellants’ Br. 41, 42.               He also contends the district

court erred in assigning the $50,000 that Appellant Jeffries

claimed to be his to a drug quantity because “[t]he cash itself

was    not    determined        to    be     related    to   any    particular   drug

activity.”         Id. at 41.

              The district court assigned to Appellant Jeffries 19

kilograms of powder cocaine, based on three trips to Atlanta (11

kilograms      total),       three    trips    to    Winston-Salem     (6   kilograms

total),      and    a   trip    to    Texas    ($50,000      cash   converted    to   2

kilograms).         Based on the conversion rate of .894, this equates

to    16.9    kilograms        of    crack    cocaine.       Therefore,     Appellant

Jeffries’s base offense level was 38, for an offense involving

8.4    kilograms        or     more    of     cocaine     base.       See    U.S.S.G.

§§ 2D1.1(a)(5), (c)(1) (2011).

              The information upon which the district court based

the drug quantity calculation with respect to Appellant Jeffries

came from the testimony of co-conspirators at trial.                        This was

                                              22
proper.      See United States v. Slade, 631 F.3d 185, 188 (4th Cir.

2011) (“[I]t is within the discretion of the district court to

credit      the    testimony       of   [   ]    witnesses    who    discussed      [the

defendant’s] involvement in the drug trade.”).                      In addition, the

district court found that Appellant Jeffries not only knew that

the   trips       to   Georgia,     Winston-Salem,      and   Texas    were    to     buy

powder cocaine to cook into crack, but that Appellant Jeffries

also contributed money to at least some of these buys.                        Further,

“[w]here police seize cash . . . from a defendant, the cash can

be converted to a quantity of drugs consistent with the normal

selling price for the drugs.”                   United States v. McGee, 736 F.3d

263, 271 (4th Cir. 2013).

              Having reviewed the record, we conclude the district

court’s findings were not clearly erroneous.                         Thus, the drug

quantity assigned to Jeffries was proper.                     See Lamarr, 75 F.3d

at    972    (base       offense    level    in    a   drug   conspiracy      case    is

determined by the amount of drugs “reasonably foreseeable . . .

within the scope of [the] unlawful agreement”).

                                            2.

                                Sentencing Enhancement

              The United States Sentencing Guidelines allow for a

three-level upward adjustment to a defendant’s offense level if

“the defendant was a manager or supervisor (but not an organizer

or    leader)      and    the   criminal    activity     involved     five    or     more

                                            23
participants or was otherwise extensive.”                            U.S.S.G. § 3B1.1(b)

(2011).     As we have explained,

       [t]he adjustment is warranted when a defendant was a
       manager   or   supervisor   “of   one   or    more    other
       participants.”     [U.S.S.G. § 3B1.1(b)] cmt. n.2.
       Therefore, “an adjustment under § 3B1.1 is proper
       ‘only if it was demonstrated that the defendant was an
       organizer, leader, manager or supervisor of people.’”
       United States v. Cameron, 573 F.3d 179, 185 (4th Cir.
       2009) (quoting United States v. Sayles, 296 F.3d 219,
       226   (4th   Cir.    2002))   (emphasis    in    original)
       (alterations   omitted).      The  burden    is    on   the
       government to prove by a preponderance of the evidence
       that the sentencing enhancement should be applied.

United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013)

(footnote     omitted).         Comment       4    to    U.S.S.G.       §   3B1.1    provides

seven factors     to    consider        in    making          the   determination      as     to

whether the enhancement applies to a particular defendant:                                    1)

the   exercise   of    decision     making             authority,     2)     the    nature    of

participation     in      the     commission             of    the     offense,       3)     the

recruitment of accomplices, 4) the claimed right to a larger

share of the fruits of the crime, 5) the degree of participation

in planning or organizing the offense, 6) the nature and scope

of    the   illegal    activity,        and       7)    the    degree       of   control     and

authority exercised over others.

             Appellant Jeffries contends that this enhancement was

improperly     applied     to     him     because         “the       record      evidence     is

insufficient to show that he actually ‘managed or supervised’

persons involved in the conspiracy.”                          Appellants’ Br. 38.             In


                                              24
reviewing      this    claim,    “[i]f       the    issue      turns    primarily    on    a

factual determination, [we] should apply the ‘clearly erroneous’

standard.”        Steffen, 741 F.3d at 414.               But, “if the issue turns

primarily on the legal interpretation of a guideline term, the

standard     moves     closer    to    de    novo    review.”          Id.   (alterations

omitted).      However, “[w]e consistently have held that a district

court’s determination that a defendant held a leadership role in

criminal     activity     is     essentially         factual     and,    therefore,       is

reviewed on appeal for clear error.”                        Id. (internal quotation

marks omitted).         At sentencing, the Government has the burden of

proving that the enhancement applies by a preponderance of the

evidence.      See id.

             In Slade, we reversed the district court’s application

of the enhancement due to the “absence of any evidence” that the

defendant managed or supervised at least one other participant

in the offense.         631 F.3d at 191.             Although the evidence showed

that    Slade       supplied     drugs       to     other      co-conspirators,         co-

conspirators sold drugs for Slade, and a co-conspirator drove

Slade   to     different       places       to    deliver      drugs,    there    was     no

evidence     that     Slade     “actively         exercised     some    authority       over

other   participants       in    the    operation         or   actively      managed     its

activities.”          Id. at 190.

             In    contrast,     we     upheld      the   enhancement        in   Steffen,

where    the      defendant       “made          decisions      that     reflected       his

                                             25
management or supervision of the criminal activities of at least

one other person,” i.e., using his position as a state highway

patrolman    “to    prevent     any   other        law    enforcement    agency    from

stopping”    a     co-conspirator’s          vehicle       containing     drugs,    and

transferring his electric bill to the same co-conspirator’s name

in order to avoid being implicated in the conspiracy and to

deflect blame to the co-conspirator.                     741 F.3d at 416; see also

United States v. Llamas, 599 F.3d 381, 389–90 (4th Cir. 2010)

(affirming U.S.S.G. § 3B1.1(b) enhancement where the defendant

“exercised supervisory responsibility over” the activities of a

call center in furtherance of a fraud scheme by, inter alia,

enforcing the center’s rules, punishing non-compliant operators,

and coordinating the operators’ activities); Kellam, 568 F.3d at

147–48    (affirming    U.S.S.G.        §    3B1.1(b)       enhancement    where    the

defendant    controlled       the     drug        buys    of   co-conspirators      and

directed the terms of payment);                    Bartley, 230 F.3d at 673–74

(affirming U.S.S.G. § 3B1.1(b) enhancement where the defendant

directed the activities of street-level drug dealers and advised

them on drug sales techniques, set prices and payment terms, and

directed the mailing and transport of drugs); United States v.

Brooks,   957    F.2d   1138,    1152       (4th    Cir.    1992)   (affirming     USSG

§ 3B1.1(b)      enhancement     where       the    defendant,    inter    alia,    paid

employees of the drug operation and “effectively ran the [drug]

operation while her husband was ill”).

                                            26
             In    the       instant      matter,         there        were       several      facts

adduced at trial and relied upon by the district court that

support     the    enhancement.               The    court       first        found     that     the

conspiracy involved five or more participants, naming Williams,

Adams,    and     Appellants       Jeffries,         Haith,       and       Benn.        It     also

concluded the conspiracy was extensive, covering a period of

four years, multiple trips across state lines, and distribution

at around a dozen crack houses.

            As         to     Appellant        Jeffries          specifically,              Mumford

testified that after Williams was in jail, Jeffries “would come

around and start doing what [Williams] was doing, [which was]

[m]aking sure the rent got paid or bringing us the drugs or

receiving the money after we sell the drugs.”                                 J.A. 1458.         She

also testified that Appellant Jeffries would sometimes “run a

house” and that she “sold sometimes for” him.                               Id.     In addition,

Appellant Jeffries “straightened [] out” a bad deal for Ronald

Duff,    when     he    attempted        to    buy   drugs        at    a     house     Appellant

Jeffries was allegedly running, and Duff never had a problem

there again.           Id. at 826-27.          The district court further found

that    Appellant       Jeffries     was      present       on    all       of    the    trips    to

Atlanta,    and    that       on   one    trip,      he     waited       at      the    hotel    for

Appellant    Benn,          Appellant     Poole,      and    Shamel         after       Poole    and

Shamel jumped from the vehicle to flee law enforcement.                                     It also

found, “Jeffries took over [Williams’s] role for a period of

                                               27
time . . . as the second in command to help Mr. Benn run his

enterprise.      So, in that capacity, he was managing –- helping to

manage   the     delivery    of   cocaine      to   the   crack    houses    and    the

collection of money.”         J.A. 2285.

            This case is more akin to Steffen than it is to Slade;

the evidence demonstrates that Appellant Jeffries stepped in as

second in command in the Bundy Boys hierarchy, ran a crack house

where he had the power to “fix” bad deals, and directed at least

one worker in the conspiracy to sell drugs.                            Based on this

evidence,      the    district    court     did     not   err     in    applying    the

sentencing enhancement.

                                          C.

                     Appellants Benn, Jeffries, and Haith

                            Alleyne v. United States

            In    supplemental     and    reply      briefs,      Appellants       Benn,

Jeffries, and Haith contend that the drug quantities attributed

to them in the PSR and found by the district court were “not

submitted to a jury and . . . proven beyond a reasonable doubt,”

in contravention of Alleyne v. United States, 133 S. Ct. 2151,

2155 (2013).         Appellant Haith’s Supp. Br. 3; see also Appellants

Benn and Jeffries’s Rep. Br. 2, 6.                  Because this issue was not

raised below, we review it for plain error.                     See United States

v. Olano, 507 U.S. 725, 732 (1993); Henderson v. United States,

133 S. Ct. 1121, 1126 (2013); see also Fed. R. Crim. P. 52(b)

                                          28
(“A     plain     error      that        affects          substantial      rights       may     be

considered      even      though     it     was       not     brought      to    the    court’s

attention.”).         Rule 52(b) authorizes an appeals court to correct

a forfeited error only if “(1) there is an error, (2) the error

is    plain,    and     (3)    the        error       affects        substantial       rights.”

Henderson,      133    S.   Ct.     at    1126        (internal      quotation        marks    and

alteration      omitted).           An    error       is     plain    “even     if    the   trial

judge’s decision was plainly correct at the time when it was

made but subsequently becomes incorrect based on a change in

law.”    Id. at 1127 (emphasis in original).

            Apprendi v. New Jersey held, “[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.”                               530 U.S. 466,

490     (2000).           Alleyne         went        a    step      further,        declaring,

“[m]andatory minimum sentences increase the penalty for a crime.

It follows, then, that any fact that increases the mandatory

minimum is an ‘element’ that must be submitted to the jury.”

133 S. Ct. at 2155.

            Alleyne has no application to Appellants’ sentences in

this case.      The district court’s drug quantity determinations at

sentencing      did    not     increase          Appellants’          statutory        mandatory

minimum    sentences,         but    rather,          were    used    to   determine          their

advisory     Guidelines        ranges       (from          which,     in   any       event,    the

                                                 29
district court varied downward).                  Alleyne itself recognized that

“broad sentencing discretion, informed by judicial factfinding,

does not violate the Sixth Amendment.”                         Id. at 2163; see also

id. (explaining that its decision is “wholly consistent with the

broad discretion of judges to select a sentence within the range

authorized by law”); United States v. Ramirez-Negron, --- F.3d

----,    2014     WL    1856762     (1st     Cir.       May        9,    2014)          (“[F]actual

findings made for purposes of applying the Guidelines, which

influence       the    sentencing       judge’s        discretion             in    imposing       an

advisory Guidelines sentence and do not result in imposition of

a   mandatory      minimum       sentence,        do    not        violate         the     rule    in

Alleyne.”);      United     States      v.   Smith,          ---    F.3d       ----,       2014    WL

1856679    (3d     Cir.    May    9,    2014)     (“Alleyne             did    not       curtail    a

sentencing court’s ability to find facts relevant in selecting a

sentence within the prescribed statutory range.”); United States

v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014) (finding Alleyne

had no application to fact-finding resulting in an increased

Guidelines sentence, explaining, “Alleyne dealt with judge-found

facts     that    raised     the       mandatory        minimum          sentence         under    a

statute,     not       judge-found       facts         that    trigger             an    increased

guidelines range”); United States v. Claybrooks, 729 F.3d 699,

708 (7th Cir. 2013) (citing Alleyne and explaining, “[a]lthough

judicially determined facts are no longer relevant to deciding

the     applicable      mandatory       minimum,         a    district             court     should

                                             30
continue      to   make    whatever       factual       findings   are     needed      to

calculate      a   defendant’s      advisory       Guidelines      range”);      United

States v. Booker, 543 U.S. 220, 233 (2005) (“[W]hen a trial

judge exercises his discretion to select a specific sentence

within a defined range, the defendant has no right to a jury

determination of the facts that the judge deems relevant.”). 4

              Thus there is no Alleyne error in the district court’s

determination of Appellants’ drug quantities at sentencing.

                                            D.

                                 Appellant Haith

                            United States v. Davis

              Appellant    Haith     also    challenges      his   career     offender

and   armed    career     criminal    designations         as   violative     of    this

court’s decision in United States v. Davis, 720 F.3d 215 (4th

Cir. 2013).

                                            1.

              Davis   held,    “a     consolidated         sentence      under     North

Carolina law is a single sentence for purposes of the career

offender      enhancement.”         720     F.3d   at    216.      Indeed,       two   of


      4
       See     also United States v. Holder, No. 13-4269, 2014 WL
57798 (4th    Cir. Jan. 8, 2014) (“[A]lthough judicially determined
facts are      no longer relevant after Alleyne to deciding the
applicable     mandatory minimum, the factual findings needed to
calculate     a defendant’s advisory Guidelines range are still
within the    district court’s province.”).



                                            31
Appellant       Haith’s       previous      sentences       were    consolidated       for

judgment in North Carolina, and the district court counted them

separately in determining whether Haith was a career offender.

               Because this issue was not raised at sentencing, we

review it for plain error.                 See Henderson, 133 S. Ct. at 1127.

Even assuming plain error existed here, the error did not affect

Haith’s substantial rights.                  Haith was designated as a career

offender under U.S.S.G. 4B1.1, which provides:

       (a) A defendant is a career offender if (1) the
       defendant was at least eighteen years old at the time
       the   defendant  committed   the  instant   offense  of
       conviction; (2) the instant offense of conviction is a
       felony that is either a crime of violence or a
       controlled substance offense; and (3) the defendant
       has at least two prior felony convictions of either a
       crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a).              The PSR, which the district court adopted,

listed       three    previous      offenses       as   satisfying    subsection       (3)

above.         They    were       97CRS54403      (felony    common       law    robbery);

97CRS46969       (felony       indecent       liberties      with     a    child);     and

97CRS46970 (felony indecent liberties with a child).                            The latter

two were consolidated for judgment.                     Appellant Haith is correct

that, after Davis, the consolidated judgment would count as one

sentence for purposes of the career offender enhancement.                              But

even    if    the     two   offenses       were    consolidated,      Appellant      Haith

would    still       have   “at    least    two”    prior   felony     convictions      of




                                             32
crimes of violence, and would have still satisfied the career

offender requirements. 5

                                         2.

            Appellant Haith also challenges his designation as an

armed    career    criminal,    that     is,   a    defendant     convicted   of   an

offense    under       18   U.S.C.   §   922(g)      who   has    “three   previous

convictions by any court [for a crime punishable by imprisonment

for a term exceeding one year] for a violent felony or a serious

drug offense, or both, committed on occasions different from one

another.”         18   U.S.C.   §    924(e);       U.S.S.G.   §   4B1.4(a).        His

argument is based on Davis -- that is, his consolidated judgment

should count as only one offense.                    Davis, however, does not

apply to the armed career criminal context.



     5
       In his supplemental brief, Appellant Haith also argues
that the North Carolina felony indecent liberties offenses were
not crimes of violence.    This is an argument that could have
been raised in Appellant Haith’s opening brief but was not;
therefore, it is waived. See United States v. Hudson, 673 F.3d
263, 268 (4th Cir. 2012); United States v. Leeson, 453 F.3d 631,
638 n.4 (4th Cir. 2006) (“Because Leeson did not present his
argument based upon Crawford in the argument section of his
opening brief, and Crawford was readily available at the time
Leeson filed his opening brief, Leeson’s argument based upon
Crawford is waived.”); see also Fed. R. App. P. 28(a) (“The
appellant’s brief must contain . . . the argument, which must
contain . . . appellant’s contentions and the reasons for
them[.]”).     Furthermore,   when  Appellant   Haith  requested
supplemental briefing, he did so only to address Alleyne and
Davis. See United States v. Benn, No. 12-4522, ECF No. 95 (4th
Cir. filed June 26, 2013).



                                         33
                                         3.

            Finally,     even       assuming   error     in    both   the     career

offender and armed career criminal context, Appellant Haith’s

offense level would not change because it was already at level

43 before the proposed enhancements about which Appellant Haith

complains, and the Guidelines state, “[a]n offense level of more

than 43 is to be treated as an offense level of 43.”                        U.S.S.G.

Ch. 5, Pt. A n.2 (emphasis supplied).                The Guidelines range for

an   offense   level    of    43,     regardless    of   the   criminal     history

points, is life in prison.            Thus, any potential error here would

not affect Appellant Haith’s substantial rights.                  See Henderson,

133 S. Ct. at 1126.

                                         IV.

            Lastly, we consider arguments by Appellants Jeffries

and Haith that the expert witness used by the Government, GPD

Corporal    Jon   Marsh,      was    erroneously    admitted    and   erroneously

qualified as an impartial expert witness.

            Appellants claim that Corporal Marsh’s testimony “was

prejudicial to the defendant in that it allowed ‘bolstering’ of

testimony      and     falsely       supported      evidence     of    a      single

conspiracy.”         Appellants’ Br. 43.           They also point out that

Corporal Marsh came from “the same investigative body that was

involved in the prosecution of [Appellants]” and thus, the court

gave   “credence       that    the     Greensboro    Police     Department      was

                                         34
employing     highly     qualified      officers    and        experts    in    this

investigation, even though Mr. Marsh was not involved in any

part of the particular investigation.”             Id. at 44.

            We    review     a   district     court’s   admission        of    expert

witness testimony for abuse of discretion.              See United States v.

Hopkins, 310 F.3d 145, 151 (4th Cir. 2002).                A court abuses its

discretion       “if   its   decision    is    guided     by    erroneous      legal

principles or rests upon a clearly erroneous factual finding.”

United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).

                                        A.

             At trial, Corporal Marsh testified with regard to drug

distribution and firearms.           After opining as to his education

and extensive training with regard to narcotics investigations, 6

Corporal Marsh testified about how crack cocaine is normally

     6
       Corporal Marsh was an eighteen-year veteran with the GPD,
having worked thirteen years as a detective in vice and
narcotics. He also worked six months on a highway interdiction
team and two years in the tactical division working street
narcotics.   He was a sworn task force officer with the DEA for
six years. During his eighteen year career, Corporal Marsh had
worked 6,000-8,000 narcotics cases, approximately half of which
involved cocaine. He participated in at least 300-400 search
warrants (conservatively) and of those, about sixty percent
involved cocaine.   Corporal Marsh graduated from University of
North Carolina at Greensboro with a bachelor’s degree in
political science. He attended the Greensboro Police Academy
where he received 40 hours of training in narcotics and since
then continued his training, having received over 680 additional
hours of training related to narcotics investigations.        He
further received training through the DEA when he became a task
force officer.



                                        35
bagged up, how it is cut, the materials used to cut and package

it, how much it is usually worth, and how crack houses normally

operate.      Pertinent to Appellants Jeffries and Haith, Corporal

Marsh testified about “why . . . crack dealers have firearms.”

J.A. 1389.      Corporal Marsh explained,

      Most of the time, in my experience, what I have seen
      is [crack dealers have firearms for] protection for
      themselves and for the product that they are selling
      and their money . . . .   [They also have firearms] a
      lot as boasting, trying to basically ward off getting
      rob[bed]. I’ve heard -- you know -- if it looks scary
      or if they feel -- drug dealers think that they can
      show a gun or intimidate people who are buying from
      them who may be [an]other [seller].    [T]hey want to
      ward off the fact of an attempted robbery, boast about
      it, show them I got a gun. I am not going to be taken
      like that. I am going to protect myself at any means.

Id. at 1390-91.        Corporal Marsh also testified about the types

of firearms he typically sees when crack dealers are trying to

protect      themselves,    i.e.,     handguns,   semi-automatic         handguns,

other   concealable        weapons,    and   sometimes      shotguns;     and   the

places he typically finds them, i.e., in a closet, on the table,

on the mantel, next to a door, underneath a couch.

              Appellant     Jeffries      filed       a   motion    for     expert

credentials on February 7, 2012, one week before trial.                         The

Government filed its expert witness notification for Corporal

Marsh on February 16, 2012, three days after jury selection and

two   days    after   trial   testimony      began.       Even   then,   Appellant

Jeffries claims he only received a “curriculum vitae, as well as


                                        36
hand-written notes from Detective Marsh compiling his training

over the years.”        Appellants’ Br. 43.

             On February 20, 2012, Appellant Haith filed a motion

to exclude Corporal Marsh, claiming that the evidence sought to

be presented was not reliable (under Rule of Evidence 702), and

was   more    prejudicial          than   probative       (under    Rule    of   Evidence

403).     The motion was made only on behalf of Appellant Haith,

and did not mention the timeliness of the notice of the expert

testimony of Corporal Marsh; however, on the morning of February

23, 2012, Appellant Jeffries’s counsel addressed the timeliness

of the motion, stating, “I . . . object to the timeliness of the

[notice] for the record.                  The notice was given on [February]

16th after motions had been filed requesting reports from expert

witnesses,     which        were    filed      timely     before   the     beginning     of

trial.”      J.A. 1371.

              The district court ruled that the testimony would be

allowed      “with    proper        foundation        laid   for     each    aspect     of

testimony.”          J.A.    17.      As       to   the   timeliness      argument,     the

district     court     explained,         “I    think     folks    have    had   time   to

certainly be prepared for it.                   So it is not coming as any shock

to anybody.      It is also the kind of testimony that, for those of

us who deal with it on a daily basis in connection with these

types of cases, is certainly anticipated; that is, there is very



                                               37
little of this that is new or novel to anybody.”                              Id. at 1375-

76.

                                              B.

             We    are       troubled   about       the   way   in     which    the   expert

testimony of Corporal Marsh was introduced and utilized by the

Government.            At oral argument, the Government stated that it

certified Corporal Marsh as an expert because it wanted to “err

on the side of caution,” even though Corporal Marsh’s testimony

“wasn’t the kind of information that we typically consider an

expert opinion.” Oral Argument at 50:40-51:00, United States v.

Benn,       No.        12-4255     (April           11,     2014),       available        at

http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-

arguments.             The    Government      reiterated        that     in    the    Middle

District of North Carolina, “we don’t typically file the notice

of    expert      opinion      [when    police       officers     testify       about    the

connection between guns and drugs.]                       We ordinarily bring it in

as    lay   opinion      testimony.”          Id.    at    52:20-28.          Despite   this

assertion,        in    this   case,    the    Government        not    only    sought    to

certify Corporal Marsh as an expert, but did so three days after

trial began, and more than a week after Appellants requested

expert disclosures.             This is far from “err[ing] on the side of

caution.”         In fact, doing so gives the impression of bestowing

the court’s imprimatur on what -- the Government now argues --

is essentially lay witness testimony.

                                              38
             Furthermore, this and other courts have appropriately

excluded     expert    witness   testimony     based   on   untimely    notice.

See, e.g., United States v. Harris, 995 F.2d 532, 536 n.4 (4th

Cir. 1993) (“[D]efense counsel’s advice and presentation to the

court   on   the   first   day   of   trial   hardly   gave   the   government

adequate notice of his intention to use an expert witness.”);

United States v. Curry, 977 F.2d 1042, 1052 (7th Cir. 1992)

(notice of the proposed proffer of expert testimony given four

days before trial was prejudicial to the government and would

have justified its exclusion); United States v. Dowling, 855

F.2d 114, 118 (3d Cir. 1988) (notice of the proposed proffer of

expert testimony given five days before trial was considered

prejudicial to the government), aff’d on other grounds, 493 U.S.

342, 354 (1990); see also Wilkins v. Montgomery, --- F.3d ----,

2014 WL 1759083 (4th Cir. May 5, 2014) (in a civil case, finding

no abuse of discretion in district court’s exclusion of expert

testimony where disclosure was made after the agreed-upon expert

disclosure     date,    after    discovery    was   closed,   after    Appellee

filed a motion for summary judgment).

             Although    we   have    misgivings    about   the   Government’s

actions regarding this matter, we find no abuse of discretion on

the part of the district court.               For one thing, it does not

appear that Appellants were prejudiced by the late notice.                 See

United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir.

                                        39
1997) (holding that a defendant “must demonstrate prejudice to

substantial       rights      to        justify         reversal       for     violations        of

discovery       rules”). 7         In     the       week      between    the     Government’s

disclosure and Corporal Marsh’s testimony, Appellants did not

ask for a continuance to seek and submit their own expert, and

both Appellant Jeffries’s and Appellant Haith’s attorneys cross-

examined Corporal Marsh at trial.                             During cross examination,

defense     counsel      firmly         developed           Appellants’        position      that

Corporal     Marsh’s         testimony             “ha[d]      no    connection       .      .     .

whatsoever” to the specifics of the case at hand.                                  J.A. 1402.

Contrast    United       States         v.    Garcia,         ---    F.3d    ----,    2014        WL

1924857,    at    *7-8    (4th     Cir.        May      15,    2014)    (holding      that       the

district court abused its discretion in allowing law enforcement

expert    testimony      where      “there          were      inadequate       safeguards        to

protect the jury from conflating [the expert’s] testimony as an

expert    and    fact    witness”            and    the     expert     “used    her   personal

knowledge of the investigation to form (not simply to ‘confirm’)

her ‘expert’ interpretations.”).

            Further, Corporal Marsh’s testimony did not, in fact,

contravene the rules of evidence.                       Fed. R. Evid. 702 provides,

     7
       See also United States v. Richardson, 128 F. App’x 305,
309 (4th Cir. 2005) (even when a defendant is given late notice
of an expert witness, he is not entitled to relief unless he
“suffered . . . prejudice as a result of th[e] [discovery]
violation”).



                                                   40
        A witness who is qualified as an expert by knowledge,
        skill, experience, training, or education may testify
        in the form of an opinion or otherwise if:

        (a) the expert’s scientific, technical, or other
        specialized knowledge will help the trier of fact to
        understand the evidence or to determine a fact in
        issue;

        (b) the    testimony    is    based        on    sufficient      facts   or
        data;

        (c)   the  testimony   is   the                 product    of     reliable
        principles and methods; and

        (d) the expert has reliably applied the principles and
        methods to the facts of the case.

Fed. R. Evid. 702.          Under Rule 702, “the trial judge must ensure

that any and all [expert] testimony or evidence admitted is not

only     relevant     but     reliable.”                Daubert     v.    Merrell      Dow

Pharmaceuticals,      Inc.,     509   U.S.        579,     589    (1993).      Based    on

Corporal Marsh’s qualifications and credentials, it was not an

abuse     of    discretion    for     the        district    court       to   allow    his

testimony to aid the jury in understanding the complex inner

workings of drug conspiracies and the connection between guns

and drugs.

               Similar testimony has been upheld as appropriate by

this court.         See, e.g., United States v. Galloway, --- F.3d

----, 2014 WL 1424939, at *6 (4th Cir. Apr. 15, 2014) (under

plain error review, the district court did not err in qualifying

police officers as expert witnesses with regard to interpreting

intercepted drug-related phone conversations); United States v.

                                            41
Baptiste, 596 F.3d 214, 223 (4th Cir. 2010) (on plain error

review,      expert        testifying     about       his    approach      to     decoding

language used         by    drug   dealers      did    not   contravene      Rule       702);

Hopkins, 310 F.3d at 151 (expert who explained how the materials

found   in    Hopkins’s        car     led     him    to    believe,      based    on    his

experience     and       training,      that    Hopkins      was    involved       in   drug

distribution        was     properly     admitted       under      Rule    702);    United

States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994) (holding

district     court       properly      admitted       expert    testimony         regarding

tools of drug trade); United States v. Brewer, 1 F.3d 1430,

1435-36      (4th     Cir.     1993)     (expert       testimony       concerning        the

significance        of     extensive     phone       traffic    between      Brewer      and

members of the alleged drug ring did not contravene Rule 702).

             Likewise, courts -- including our own -- have also

held such expert testimony admissible in the context of drugs

and firearms.            See, e.g., Hopkins, 310 F.3d at 151 (affirming

admission of expert testimony that a “small caliber weapon,”

inter alia, led an officer to conclude that Hopkins was a drug

dealer); see also United States v. Anchrum, 590 F.3d 795, 804

(9th Cir. 2009) (allowing law enforcement agent to testify as

expert and opine on the “various reasons a hypothetical drug

dealer would possess a firearm”); United States v. Blount, 502

F.3d 674, 679-80 (7th Cir. 2007) (district court did not err in



                                             42
allowing police officer to offer expert opinion that gun was

used to protect defendant’s drug business).

          Further,   we    cannot     say     that   the   district    court’s

admission of Corporal Marsh’s testimony was “guided by erroneous

legal principles” with respect to Federal Rule of Evidence 403.

Johnson, 617 F.3d at 292.           As explained above, the probative

value of the testimony was high, and the prejudice to Appellants

was low -- especially considering Corporal Marsh admitted he was

not speaking directly about the Bundy Boys conspiracy, and there

was   ample   evidence    otherwise        supporting   the   jury     verdicts

against Appellants Jeffries and Haith.               For these reasons, the

district court did not abuse its discretion in allowing Corporal

Marsh to testify as an expert. 8

                                      V.

          For the foregoing reasons, as to all Appellants, the

judgment of the district court is

                                                                      AFFIRMED.




      8
       Nonetheless, we caution the Government against the have-
their-cake-and-eat-it-too   attitude  exhibited  in   this  case
regarding law enforcement testimony.      The Government either
views it as expert testimony or not.    If the former, they need
to behave accordingly and provide timely notice.



                                      43
