                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4782


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARTIN MENDEZ, a/k/a Tilin, a/k/a Chico, a/k/a Gordo,

                Defendant - Appellant.



                            No. 10-4803


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ELVER DIAZ-VEGA, a/k/a Elver Vega-Diaz, a/k/a Elver Mendez-
Vega, a/k/a Al, a/k/a Raymond Sanchez,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia.        Cameron McGowan Currie,
District Judge. (3:09-cr-00930-CMC-1; 3:09-cr-00930-CMC-2)


Submitted:   February 27, 2012            Decided:   March 29, 2012


Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Michael W. Chesser, Aiken, South Carolina; Wallace H. Jordan,
Jr., WALLACE H. JORDAN, JR., PC, Florence, South Carolina, for
Appellants. William N. Nettles, United States Attorney, Susan Z.
Hitt,   Assistant  United   States  Attorney,   Columbia,  South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              A       federal   jury     convicted          Martin       Mendez    and       Elver

Diaz-Vega of conspiracy to possess with intent to distribute and

distribute cocaine and cocaine base, in violation of 21 U.S.C.

§ 846 (2006); convicted Mendez of three counts of possession

with intent to distribute cocaine and marijuana and aiding and

abetting,     in       violation    of      18   U.S.C.       §    2    (2006),    21    U.S.C.

§ 841(a)(1) (2006), and three counts of use of a communication

facility      to       commit   a   felony           and    aiding      and   abetting,         in

violation of 18 U.S.C. § 2, 21 U.S.C. § 843; and convicted

Diaz-Vega     of       possession      of   a    firearm      in       relation    to    a    drug

trafficking offense, in violation of 18 U.S.C. § 924(c) (2006),

and possession of a firearm by an illegal alien, in violation of

18   U.S.C.       §    922(g)(5)    (2006).           The   district       court    sentenced

Mendez to a total of 240 months of imprisonment and sentenced

Diaz-Vega to a total of 300 months of imprisonment, and they now

appeal.    Finding no error, we affirm.

              On appeal, Mendez argues that the district court erred

in instructing the jury regarding the amount of drugs for which

it could find Mendez responsible.                     As Mendez failed to object to

the jury instructions before the district court, we review this

issue for plain error.                  See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993).                                 To meet this

standard, Mendez must demonstrate that there was error, that was

                                                 3
plain, and that affected his substantial rights.                     Id.     Moreover,

even if Mendez demonstrates plain error occurred, we will not

exercise     discretion       to   correct      the   error    “unless      the    error

seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.”             Id. (internal quotation marks and

citation omitted).

             “We review a jury instruction to determine whether,

taken as a whole, the instruction fairly states the controlling

law.”    United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir.

2006) (internal quotation marks and citation omitted).                       Under 21

U.S.C.A.     § 841(b)    (West     2006    &    Supp.   2011),      “the    amount    of

narcotics attributable to a defendant dictates the period of

incarceration      for    a    defendant       convicted      of   the     substantive

offense.”     United States v. Collins, 415 F.3d 304, 312 (4th Cir.

2005).       In a prosecution for a conspiracy involving multiple

drugs,   a    district    court     must       assess   the    quantity      of    drugs

attributable to each coconspirator by relying on the principles

set forth in Pinkerton v. United States, 328 U.S. 640 (1946).

Id.     “Under current precedent, rather than the district court

applying Pinkerton principles when determining the appropriate

sentence under § 841(b), that same court must instead instruct

the   jury    to   use   Pinkerton        principles     when      making    the    same

determination.”      Id. at 314.



                                           4
             Pursuant to Pinkerton, a coconspirator is liable for

the amount of drugs with which he was personally involved, or

the amount that other members of the conspiracy were involved in

whose   actions        “were     both     reasonably           foreseeable       and    in

furtherance of the jointly undertaken criminal activity.”                              Id.

at 311 (citing Pinkerton, 328 U.S. at 640).                        Here, the district

court properly instructed the jury regarding the amount of drugs

for which it could hold Mendez responsible in accordance with

the Pinkerton principles.              We therefore find no plain error in

the court’s charge to the jury.

             Mendez    and     Diaz-Vega         also    argue    that   the     district

court erred in allowing a witness to assert his Fifth Amendment

right against self-incrimination at a hearing on the Appellants’

motion for a new trial.           We review a district court’s denial of

a   motion   for   a   new     trial    for      abuse    of     discretion.       United

States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).                          “The Sixth

Amendment grants a defendant the right to compel testimony by

witnesses in his defense.               When a defendant’s right to compel

testimony      conflicts        with     a        witness’        privilege       against

self-incrimination,       however,       a       court   must     make   a   proper    and

particularized     inquiry      into     the      legitimacy       and   scope    of   the

witness’ assertion of the privilege.”                    United States v. Sayles,

296 F.3d 219, 223 (4th Cir. 2002) (internal quotation marks and

citation omitted).        The district court may excuse a witness from

                                             5
testifying   only   upon   a   finding   that   the   witness    “could

legitimately refuse to answer any and all relevant questions.”

Id. (internal quotation marks and citations omitted).           We have

thoroughly reviewed the record and conclude that the district

court conducted a proper inquiry and did not err in allowing the

witness to assert his Fifth Amendment privilege.

          Accordingly, we affirm the judgment of the district

court.   We dispense with oral argument as the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                AFFIRMED




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