                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 06-5192



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


LUIS MANGUAL, JR., a/k/a Darin Harris,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Roger W. Titus, District Judge.
(8:04-cr-00235-RWT-2)


Submitted:   April 29, 2008                   Decided:   May 22, 2008


Before WILKINSON and NIEMEYER, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


William C. Brennan, Jr., William A. Mitchell, Jr., BRENNAN,
SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for Appellant. Rod
J. Rosenstein, United States Attorney, Deborah A. Johnston, Robert
K. Hur, Assistant United States Attorneys, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Luis Felipe Mangual, Jr., appeals his life sentence after

being convicted of conspiracy to distribute and possess with intent

to distribute five kilograms or more of cocaine, one kilogram or

more of heroin, and fifty grams or more of cocaine base, in

violation of 21 U.S.C. § 846 (2000), nineteen counts of use of a

communications device in furtherance of the drug conspiracy, in

violation of 21 U.S.C. § 843(b) (2000), four counts of possession

with   intent    to    distribute   500     grams   or   more   of    cocaine,   in

violation of 21 U.S.C.A. § 841 (West 1999 & Supp. 2007), possession

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

violation of 21 U.S.C.A. § 841, interstate travel with intent to

promote and carry on a business enterprise involving narcotics, in

violation   of    18    U.S.C.A.    §    1952   (West    2000   &    Supp.   2007),

conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h) (2000), and money laundering, in violation of 18 U.S.C.A.

§ 1956(a)(1)(A)(I) (West 2000 & Supp. 2007).

            On appeal, Mangual challenges his sentence, contending

the district court erred in: (1) calculating the amount and type of

drugs attributable to him; (2) determining that he should be held

responsible for a firearm possessed by a co-conspirator; (3)

determining that he held a supervisory role within the conspiracy;

(4) denying any adjustment for acceptance of responsibility; (5)

imposing    an    unreasonable          sentence;   (6)    making      sentencing


                                        - 2 -
determinations based solely on judicial findings; and (7) imposing

an enhanced sentence without prior notice pursuant to 28 U.S.C.

§ 851 (2000).   Mangual has also filed a motion requesting leave to

file a pro se supplemental brief, in which he raises additional

claims relating to his sentence.         Finding no error, we affirm.



                                    I

          Appellate review of a district court’s imposition of a

sentence is for abuse of discretion.          Gall v. United States, 128 S.

Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007).       The appellate court must first ensure

that the district court committed no procedural errors, such as

“failing to calculate (or improperly calculating) the Guideline

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence - including an explanation for any deviation from the

Guideline range.”      Gall, 128 S. Ct. at 597.            “In assessing a

challenge to a sentencing court’s application of the Sentencing

Guidelines,”    this   court   reviews    a    district   court’s   “factual

findings for clear error and its legal conclusions de novo”.

United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).




                                  - 3 -
                                   A

            Mangual’s first claim challenges the district court’s

determination of his base offense level, asserting that the total

amount of drugs held attributable to him was “purely speculative,

procedurally improper, and unsupported by the record.” Pursuant to

U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.3(a)(1) (2005), in

determining the proper base offense level to apply to a defendant

involved in a drug conspiracy, the defendant is responsible for his

own acts, as well as for “all reasonably foreseeable acts” of his

co-conspirators   taken   in   furtherance   of   the   joint   criminal

activity.    See United States v. Randall, 171 F.3d 195, 210 (4th

Cir. 1999); United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir.

1993).   The Guidelines do not require precise calculations of drug

quantity, as the district court’s approximation is not clearly

erroneous if supported by competent evidence. Randall, 171 F.3d at

210.   If the district court relies on the drug quantity included in

the presentence report (“PSR”), the defendant bears the burden of

establishing that the information is incorrect, as “mere objections

are insufficient.”   Id. at 210-11.

            At sentencing, the Government presented testimony from

DEA Agent Charles Hedrick and Officer Thomas Eveler.            Hedrick’s

testimony related to a ledger recovered from the residence of Luis




                                 - 4 -
F. Mangual, Sr.,1 that listed the quantity of drugs received and

distributed by Mangual, Sr., including various transfers of cocaine

and heroin to his son.     According to Agent Hedrick’s analysis of

the ledger, between October 2002 and June 2004, a total of 549

kilograms of cocaine, worth approximately $ 11.5 million, was

received by Mangual, Sr., from an individual identified as “Cucho.”

During this period, Mangual, Sr., also received 14.5 kilograms of

heroin, worth approximately $1.1 million.            The ledger indicated

that Mangual, Sr., provided his son with between 100 to 140

kilograms of cocaine and approximately 5 kilograms of heroin, with

the drugs sold to Mangual at a discounted price compared to other

buyers.   Pursuant to USSG § 2D1.1(a)(3), the district court found

Mangual was responsible for “substantially more than 150 kilograms”

of cocaine, resulting in a base offense level of 38, as the amount

of narcotics attributable to Mangual was not limited solely to the

drugs sold to him, but also included the total amount of drugs

received by his father.

            At   sentencing,   Mangual   contended    the   district   court

should limit its analysis to the amount of drugs he actually

received.    However, in light of Mangual’s close association with

his father within the jointly undertaken criminal operation, the

district court had sufficient grounds to hold Mangual responsible


     1
      Mangual, Sr., who is Mangual’s father and was charged as a
co-conspirator, pled guilty to conspiracy to distribute and possess
with intent to distribute controlled substances.

                                  - 5 -
for the total amount of narcotics received by his father.                In the

wiretapped telephone conversations, Mangual and his father often

spoke to one another about the operation of the drug enterprise,

discussing matters such as supply sources, customers, quality of

the drugs, transportation of the narcotics, and the activities of

other members of the conspiracy.           On one occasion, Mangual, Sr.,

informed his son that he was awaiting a shipment of 200 kilograms

of cocaine from a supplier.            On another occasion, Mangual was

provided with samples of heroin to do a “product test” to help his

father decide whether to purchase larger amounts from another

supplier.

            Mangual’s close relationship with his father within the

conspiracy    was   clearly     evinced    by   the   fact   that   Mangual   was

expected to take over his father’s position in the drug enterprise

while Mangual, Sr., was in the hospital.              Mangual, Sr., intended

for his son to run the entire operation during his absence and had

discussed this matter with his suppliers in order to ensure the

supply of narcotics would not be interrupted.                Though Mangual was

arrested before this transition occurred, the fact that he was

expected    to   serve   as   the   head   of   the   distribution    operation

demonstrated he was well aware of the scope of his father’s

criminal activities.          Therefore, we find the district court had

ample evidence to support its finding that the drug deliveries to




                                     - 6 -
Mangual’s    father     were   reasonably      foreseeable    acts   taken   in

furtherance of their joint criminal activity.

            Mangual also contends the district court erred by failing

to make any finding as to whether he and his father intended or

were capable of delivering the amount of drugs held attributable to

them.    However, this claim is wholly without merit.             The district

court is required to exclude an unsuccessfully negotiated amount of

narcotics only when a defendant “lacked both the intent and the

ability to complete the drug transaction.”                  United States v.

Brooks, 957 F.2d 1138, 1151 (4th Cir. 1992).                In this case, not

only did Mangual and his father clearly intend to distribute the

narcotics for which they were held responsible, but Officer Eveler

specifically stated that Mangual, Sr., was capable of distributing

at least 200 kilograms of cocaine.                While Mangual notes the

district court made no finding regarding the drugs he received from

another supplier, Edward Barber, such a finding was unnecessary, as

the court had already determined Mangual was responsible for

substantially more than 150 kilograms of cocaine based solely on

his   dealings   with   his    father.       Accordingly,    we   conclude   the

district court did not err in calculating Mangual’s base offense

level.

                                         B

            Mangual’s next contention is the district court erred by

holding him responsible for a firearm recovered from the residence


                                    - 7 -
of a co-conspirator, Travel Riley,2 as there was no evidence

Mangual had ever been to the residence or was otherwise aware that

Riley possessed a firearm.3      Under USSG § 2D1.1(b)(1), a two-level

offense level enhancement shall be imposed if a dangerous weapon,

including a firearm, was possessed during the narcotics offense.

The adjustment is applied “if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.”

USSG § 2D1.1(b)(1), comment. (n.3).       In order to demonstrate that

a weapon was present, the Government need show only that “the

weapon was possessed in connection with drug activity that was part

of the same course of conduct or common scheme as the offense of

conviction.”    United States v. McAllister, 272 F.3d 228, 233-34

(4th Cir. 2001) (internal quotation marks and citation omitted).

Pursuant   to   USSG   §   1B1.3(a)(1)(B),   a   defendant   may   be   held

responsible for a firearm possessed by another member of the



     2
      Riley pled guilty to conspiracy to distribute and possess
with intent to distribute 500 grams of cocaine and possession of a
firearm in furtherance of a drug trafficking crime.
     3
      Mangual also contends the district court failed to determine:
(1) whether Riley’s possession of the firearm occurred during the
commission of the offense or in furtherance of that offense; and
(2) whether it was clearly improbable that the weapon was connected
with the offense. However, Mangual failed to raise either of these
objections before the district court. At sentencing, the district
court noted that it was “undisputed” that the firearm was seized in
proximity to drugs and cash that were part of the conspiracy. See
Fed. R. Crim. P. 32(I)(3) (“At sentencing, the court may accept any
undisputed portion of the presentence report as a finding of
fact.”).    Accordingly, because Mangual failed to raise these
issues, there was no error by the district court.

                                  - 8 -
conspiracy if possession of the firearm was reasonably foreseeable

to the defendant and “in furtherance of the jointly undertaken

criminal activity.”          See United States v. Kimberlin, 18 F.3d 1156,

1159-60 (4th Cir. 1994); Brooks, 957 F.2d at 1148-49.

              As Mangual conceded at sentencing, the Government is not

required to prove he possessed or had knowledge of the firearm held

by Riley.      See United States v. Nelson, 6 F.3d 1049, 1055-56 (4th

Cir. 1993), abrogated on other grounds by Bailey v. United States,

516 U.S. 137 (1995); see also United States v. White, 875 F.2d 427,

433    (4th    Cir.       1989).        While       Mangual    contends       that   USSG

§ 2D1.1(b)(1) demands some form of a physical nexus between the

defendant and the firearm held by a co-conspirator, the evidence is

only required to show that “under the circumstances of the case, it

was fair to say that it was reasonably foreseeable to [defendant]

that   his     co-participant          was    in     possession     of    a    firearm.”

Kimberlin,     18     F.3d    at     1160    (internal    quotation      and    citation

omitted). Furthermore, this court has held that “[a]bsent evidence

of exceptional circumstances, . . . it [is] fairly inferable that

a codefendant’s possession of a dangerous weapon is foreseeable to

a   defendant      with    reason      to    believe    that   their     collaborative

criminal venture includes an exchange of controlled substances for

a large amount of cash.”             Id.; see also White, 875 F.2d at 433.

              In    this     case,    the    wiretap     evidence    indicated       that

Mangual’s relationship with Riley went beyond that of a supplier


                                            - 9 -
and a street-level dealer.          At the Rule 11 hearing, Mangual

conceded he was part of a drug conspiracy involving a number of

individuals,    including    Riley,   to    whom       he   sold    cocaine   for

distribution.     While Mangual would often call Riley to discuss

payment for the drugs he provided, he would also seek Riley’s

advice on how to deal with problems he was facing, including a

police seizure of drug proceeds and the resulting issues with his

supplier.     In light of their close association and the sizeable

amount of cocaine Mangual was providing to Riley, it was reasonably

foreseeable that Riley would carry a firearm in furtherance of

their joint drug distribution efforts.            See Kimberlin, 18 F.3d at

1160.   Accordingly, we find the district court did not err in

imposing a two-level enhancement for possession of a firearm in

furtherance of the conspiracy.

                                      C

            Mangual asserts the district court erred by imposing a

three-level    enhancement   for    his    role   in    the   conspiracy.      A

three-level role adjustment is appropriate when “the defendant was

a manager or supervisor (but not an organizer or leader) and the

criminal    activity   involved    five   or   more     participants     or   was

otherwise extensive.”        USSG § 3B1.1(b).           Such an enhancement

requires, at a minimum, that the defendant was the manager or

supervisor “of one or more other participants.”                    USSG § 3B1.1,

comment. (n.2); United States v. Bartley, 230 F.3d 667, 673 (4th


                                   - 10 -
Cir.       2000).       Factors    distinguishing    a   “leadership”     or

“organizational role” from that of a manager or supervisor include:

       the exercise of decision making authority, the nature of
       participation in the commission of the offense, the
       recruitment of accomplices, the claimed right to a larger
       share of the fruits of the crime, the degree of
       participation in planning or organizing the offense, the
       nature and scope of the illegal activity, and the degree
       of control and authority exercised over others.

USSG § 3B1.1, comment. (n.4).

              Mangual   contends   the   role   enhancement   was   erroneous

because he was an independent wholesale supplier of drugs and there

was no evidence he “ever had anyone pick up or deliver drugs on his

behalf.”4     However, according to the statement of facts provided by

the Government at the Rule 11 hearing, Mangual received drugs from

Barber by use of a courier, identified as Milton Boyd.              During a

wiretapped phone conversation, Mangual directed Boyd as to where

the delivery was to be made.             Boyd was then seen delivering a

package, which included five kilograms of cocaine, to Mangual’s

residence. On another occasion, Mangual’s girlfriend brought a bag

to him in Baltimore that contained $43,500, which Mangual then

provided to his supplier, Barber, in order to pay off an existing

debt.      Based on this evidence, it is clear Mangual directed others




       4
      Mangual also claims the district court erred because it “went
directly into an analysis of what kind of leadership role Mr.
Mangual played, and therefore improperly assumed that he had played
any leadership role at all.” However, this claim is meritless.

                                    - 11 -
to transport money and drugs as part of the ongoing criminal

enterprise.     See Bartley, 230 F.3d at 673-74.

             Mangual’s     relationship   with    his   purchasers   is   not

comparable to the drug dealers in United States v. Sayles, 296 F.3d

219,   225   (4th   Cir.   2002),   who   were   involved   in   hand-to-hand

transactions at the street level and were found to have had no role

in planning or organizing the drug trafficking.             Mangual had two

tiers of buyers; some were “cash-and-carry,” while others were

“fronted” the drugs, meaning they would receive the drugs up front

and pay for it later.        In a number of calls with individuals who

were fronted cocaine, Mangual discussed payment for the narcotics

and expressed his frustration with lingering debts owed to him by

the dealers.    As is evidenced by his direct involvement in setting

payment terms with his buyers, Mangual exercised some level of

control over the dealers to whom he provided cocaine. See Bartley,

230 F.3d at 674; United States v. Howard, 923 F.2d 1500, 1503 (11th

Cir. 1991).

             Mangual’s critical role within the conspiracy is further

illustrated by his close relationship with his father.             Described

by Officer Eveler as his father’s “right-hand man,” Mangual was

provided with samples of heroin by his father to carry out product

tests and was expected to take over his father’s position within

the drug enterprise while Mangual, Sr., was in the hospital.              See

Brooks, 957 F.2d at 1152.        Accordingly, we conclude the district


                                    - 12 -
court did not clearly err in finding that Mangual’s role within the

conspiracy     justified    a     three-level      enhancement     under      USSG

§ 3B1.1(b).

                                         D

            Mangual also contends the district court erred in denying

him a reduction for acceptance of responsibility.                  A two-level

reduction in the defendant’s offense level is warranted if he

clearly demonstrates acceptance of responsibility for his offense.

USSG   §   3E1.1(a)    (2005).      An       adjustment    for   acceptance    of

responsibility does not result automatically from the entry of a

guilty plea; rather, in order to receive such a reduction, “the

defendant must prove by a preponderance of the evidence that he has

clearly      recognized     and     affirmatively          accepted    personal

responsibility for his criminal conduct.”             United States v. May,

359 F.3d 683, 693 (4th Cir. 2004) (internal quotation marks and

citation   omitted).       In   determining      whether    an   adjustment    is

warranted, the district court may consider whether the defendant

has “truthfully admitt[ed] the conduct comprising the offense(s) of

conviction, and truthfully admitt[ed] or not falsely den[ied] any

additional relevant conduct for which the defendant is accountable

under § 1B1.3.”    USSG § 3E1.1, comment. (n.1(a)).

           While a defendant may remain silent with respect to

conduct beyond the offense of conviction without affecting his

ability to obtain a reduction, “a defendant who falsely denies, or


                                    - 13 -
frivolously contests, relevant conduct that the court determines to

be true has acted in a manner inconsistent with acceptance of

responsibility.”      Id.    The district court’s determination is

entitled to “great deference” because of the sentencing judge’s

“unique   position    to    evaluate   a   defendant’s   acceptance   of

responsibility.”     United States v. Dugger, 485 F.3d 236, 239 (4th

Cir. 2007) (citing USSG § 3E1.1, comment. (n.5)).

           While the PSR recommended a two-level reduction, the

Government opposed any adjustment on the ground that Mangual had

failed to fully acknowledge his participation in the conspiracy;

specifically, his denial of any involvement in heroin distribution.

The district court agreed, concluding that, contrary to Mangual’s

assertions, his involvement was not limited to a small amount of

heroin, as he had received five kilograms of heroin from his

father.   Mangual contends there is no evidence he “ever denied the

conduct alleged or the relevant conduct,”5 and that the district

court’s determination he received five kilograms of heroin from his

father has “only minimal support in the record.”           In spite of

Mangual’s assertion that he was not personally involved in heroin,


     5
      While Mangual cites to the Rule 11 hearing and his statement
that he had no exception to the Government’s factual proffer, he
fails to note his attorney’s subsequent objection in which he
informed the court that his client was “not prepared to say he was
involved in heroin.” When questioned further by the district court,
Mangual’s attorney stated that “[t]here may have been others in
this conspiracy . . . that were involved in heroin, but Mr. Mangual
is not prepared to say today that he personally was involved in
heroin.”

                                 - 14 -
the evidence presented at the sentencing hearing indicated that

Mangual’s    father   provided    him   with   a   sample    of   heroin,

approximately 1.5 grams, to test in order to determine its quality

before distribution.    Mangual’s father would ultimately receive a

total of 14.5 kilograms of heroin during the relevant time period,

and his ledger indicated that a total of five kilograms were

delivered to Mangual.        Therefore, in light of Mangual’s false

denials regarding his relevant conduct, we find the district court

did not clearly err in denying an adjustment for acceptance of

responsibility.



                                   II

            Having found no procedural errors, we next consider the

substantive reasonableness of the sentence.         Gall, 128 S. Ct. at

597.   “Substantive    reasonableness     review   entails   taking    into

account the totality of the circumstances, including the extent of

any variance from the Guidelines range.”       Pauley, 511 F.3d at 473.

While this court may presume a sentence within the Guidelines range

to be reasonable, we may not presume a sentence outside the range

to be unreasonable.    Id.    Moreover, we must give due deference to

the district court’s decision that the 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2007) factors justify imposing a variant sentence and

to its determination regarding the extent of any variance.            “Even

if we would have reached a different sentencing result on our own,


                                 - 15 -
this fact alone is insufficient to justify reversal of the district

court.”      Id.    at   474   (internal      quotation   marks   and    citation

omitted).

            At     sentencing,    the    district    court    held      that   the

Guidelines recommendation of a life sentence was appropriate.

Mangual contends the district court failed to consider the fact

that he had pled guilty to all charges and saved the Government

significant time and expense. However, a defendant’s timely guilty

plea is not a factor that is required to be considered under

§ 3553(a).       The district court adequately stated its reasons for

imposing a life sentence, including the extremely serious nature of

the offense, the harm to society caused by the wide-ranging drug

conspiracy, Mangual’s significant criminal history, and the need to

afford adequate deterrence and protect the public from further

criminal offenses.         Accordingly, because Mangual has failed to

overcome the presumptive reasonableness of his sentence, we find

the district court did not abuse its discretion in sentencing him

to life in prison.



                                        III

            Mangual also claims the district court violated his Sixth

Amendment rights by holding him responsible for drug amounts higher

than those set forth in the indictment, citing United States v.

Booker, 543 U.S. 220, 232 (2005).                However, this argument is


                                    - 16 -
foreclosed by the remedial portion of Booker.           543 U.S. at 246.

This court has held that, after Booker, the sentencing court must

still calculate the appropriate advisory guidelines range by making

any   necessary   factual   findings    under   a   preponderance   of   the

evidence standard. See United States v. Battle, 499 F.3d 315, 322-

23 (4th Cir. 2007), cert. denied, 128 S. Ct. 1121 (2008); United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).         Accordingly,

this claim is meritless.



                                   IV

           Mangual’s final claim is the district court erred in

sentencing him pursuant to the enhanced penalty provisions under 21

U.S.C.A. § 841(b)(1)(A) because the Government failed to file the

required notice pursuant to 21 U.S.C. § 851.          However, this claim

is patently frivolous.      The required notice was filed on March 21,

2006, the day of the Rule 11 hearing, and at the beginning of the

plea hearing, the Government stated for the record that it had

filed a notice of its intent to seek an enhanced mandatory minimum

sentence. Furthermore, at the sentencing hearing, Mangual conceded

that he had received the notice, that he had been previously

incarcerated, and that there was no dispute on this issue.

           Accordingly, we affirm Mangual’s sentence.               We deny

Mangual’s motion to file a pro se supplemental brief.         We dispense

with oral argument because the facts and legal contentions are


                                 - 17 -
adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                          AFFIRMED




                              - 18 -
