                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 18-4095


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JOSEPH HOWARD DAVIS,

                    Defendant - Appellant.


Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, Senior District Judge. (5:16-cr-00065-RLV-DCK-1)


Argued: January 31, 2019                                      Decided: March 19, 2019


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Wilkinson and Judge King joined.


ARGUED: Eric Jason Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: R. Andrew
Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:

       Challenging his conviction for distribution of over 50 grams of methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), Joseph Davis contends that the

district court erred (1) in admitting an out-of-court statement that a confidential informant

made about having purchased drugs from Davis prior to the relevant investigation; (2) in

failing to require adequate authentication of an officer’s photographs of the informant’s

cellphone screen as she purportedly texted Davis in preparation for a controlled buy; and

(3) in admitting a recording of a telephone conversation between the informant and

Davis, authenticated by an officer’s identification of Davis’s voice. Davis also contends

that the district court erred in failing to explain its use of coconspirator testimony to find

drug quantities for sentencing purposes after the jury had acquitted Davis on a charged

conspiracy count.

       For the reasons that follow, we conclude that the district court did not abuse its

discretion in its admission of the challenged evidence. We also conclude that Davis’s

sentence was not procedurally unreasonable. The district court adequately explained its

decision to credit the testimony of Davis’s coconspirators about drug quantities despite

the acquittal on the conspiracy count. Accordingly, we affirm.


                                              I

       Davis was indicted in four counts with methamphetamine trafficking and related

violations in Charlotte, North Carolina, during the period from 2014 to 2016. Count I

alleged that Davis participated in a conspiracy to distribute 50 grams or more of


                                              2
methamphetamine and 500 grams or more of a substance containing methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count II charged Davis

with possession of a firearm in furtherance of the conspiracy, in violation of 18 U.S.C.

§ 924(c). Count III alleged that Davis distributed 50 grams or more of methamphetamine

on or about October 12, 2016, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

And Count IV charged Davis with possession of a firearm by a felon, in violation of

18 U.S.C. § 922(g)(1).

      At trial, the government offered evidence of an alleged conspiracy in which

Reggie Shaw supplied Davis with substantial amounts of methamphetamine to sell to

Roderick Roberts and Tangie Carroll. It also offered evidence of a controlled buy on or

about October 12, 2016, in which Davis sold a confidential informant (hereafter “the

Informant”), 54 grams of pure methamphetamine.        That transaction took place at a

mailbox cluster for the apartment complex where Davis lived and was witnessed by an

undercover officer.       Finally, the government offered evidence of Davis’s illegal

possession of firearms.

      The jury found Davis not guilty on Counts I and II, which charged Davis with

conspiracy to traffic in methamphetamine and possession of a firearm in furtherance of

that conspiracy, but found him guilty of distributing 50 grams or more of

methamphetamine on or about October 12, 2016, and possession of a firearm by a felon.

      The district court imposed a downward-variance sentence of 260 months’

imprisonment, after calculating an advisory Guidelines range of 360 months’ to life

imprisonment.    In determining the offense level, the court affirmed the presentence

                                            3
report’s determination that Davis was responsible for 4.5 kilograms or more of

methamphetamine based on the testimony given at trial by Davis’s alleged

coconspirators, Shaw and Carroll. Based on the jury’s acquittal on the conspiracy count,

Davis objected to the district court’s use of the coconspirators’ testimony to determine

drug quantities.   The district court overruled the objection, finding that the alleged

coconspirators testified “convincingly” as to drug amounts.

       Davis filed this appeal challenging his conviction, based on the allegedly

erroneous evidentiary determinations, and his sentence, based on the court’s purported

failure to explain why it relied on acquitted conduct.


                                             II

       Challenging his conviction, Davis contends that the district court erred in

admitting three items of evidence during trial: (1) the testimony of Officer Jeff Jenkins

explaining that he enlisted the Informant to participate in a controlled buy because she

told him that she had purchased methamphetamine from Davis; (2) photographs that

Officer Jenkins took of the Informant’s cellphone screen as she was purportedly texting

with Davis; and (3) a recording of a telephone call between the Informant and a man

whom Officer Jenkins identified as Davis. We address each of these points in order,

reviewing them for abuse of discretion. See United States v. Burfoot, 899 F.3d 326, 340

(4th Cir. 2018).




                                             4
                                            A

       Davis first contends that the district court erred in admitting an out-of-court

statement of the Informant through the testimony of Officer Jenkins, who was explaining

why he enlisted the Informant to make a controlled buy from Davis. Jenkins testified that

the Informant had told him that she had previously purchased methamphetamine from

Davis, as follows:

       Q. Can you tell us what you did with regard to investigating Mr. Davis?

       A. We had been involved in a methamphetamine conspiracy in the Western
       District of North Carolina, and Mr. Davis’s name came up in that
       investigation prior to me meeting him.

       Q. What proactive steps did you take in the investigation?

       A. I had an informant that had came forward to me and stated that they
       were currently purchasing methamphetamine from Joseph Davis and could
       facilitate a purchase during a controlled buy while cooperating with us in
       that investigation.

(Emphasis added).     Davis did not object to the evidence at trial.    He now argues,

however, that we should conclude that Jenkins’s statement about what the Informant had

stated to him was inadmissible hearsay under Federal Rule of Evidence 802 and that it,

together with the other inadmissible evidence challenged on appeal, “requires this court

to reverse his conviction and remand for a new trial.”

       Yet, even as Davis challenges Jenkins’s testimony about what the Informant had

told him, Davis did not at trial, nor does he now on appeal, challenge Officer Joseph

Barringer’s testimony to the same effect. Barringer testified:

       Q. All right. Now, at some point, were you involved in a controlled
       purchase of methamphetamine from the defendant in this case?

                                             5
       A. Yes, I was.

       Q. Can you tell us about that?

       A. There were two different incidents where we set up controlled purchases
       from the defendant in this matter. Both were using a young lady from
       Hickory, North Carolina, [the Informant] who was the girlfriend of Billy
       Greene. She had met with local law enforcement officials and explained
       that she had been involved in the distribution of methamphetamine and
       heroin in the Catawba County area and identified the defendant as one of
       her sources of supply in this case.

(Emphasis added). Davis’s challenge to Jenkins’s testimony, if successful, would thus

hardly accomplish anything meaningful.

       In any event, with respect to Davis’s challenge to Officer Jenkins’s testimony

about the Informant’s out-of-court statement, Davis must now, on appeal, not only

demonstrate to us that the district court abused its discretion in failing to exclude the

evidence sua sponte, and therefore plainly erred, but also that the error affected his

substantial rights and seriously affected the fairness of his trial. See United States v.

Moore, 810 F.3d 932, 939 (4th Cir. 2016). We conclude that he fails at the first step.

       What is apparent from Officer Jenkins’s testimony, as well as Officer Barringer’s,

is that both were explaining why they solicited the Informant as an informant. Because

the Informant had told them that she had been purchasing methamphetamine from Davis,

the officers concluded that she, as an informant, would work credibly in participating in a

controlled buy from Davis. Thus, the testimony was offered not for the truth of whether

the Informant had in fact purchased methamphetamine from Davis on prior occasions,

but rather as an explanation — or a motive — for the officers’ using the Informant in

setting up the controlled buy. In these circumstances, the testimony was not even hearsay

                                            6
barred by Federal Rule of Evidence 802, as Davis claims. Federal Rule of Evidence

801(c) defines hearsay as “a statement that: (1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to prove the

truth of the matter asserted in the statement.” See also United States v. Love, 767 F.2d

1052, 1063 (4th Cir. 1985) (holding that a statement made by a declarant out of court was

not hearsay because it “was offered not for its truth but only to explain why the officers

and agents made the preparations that they did in anticipation of the appellants’ arrest”).

Since the Informant’s out-of-court statement was not offered for its truth, we reject

Davis’s challenge to this evidence.


                                            B

       Davis contends next that the district court abused its discretion in admitting

photographs taken by Officer Jenkins of text messages on the Informant’s cellphone.

Jenkins testified that he was with the Informant on the day of the controlled buy and that

during her texting leading up to the transaction, he sat next to her and watched her send

and receive text messages. With her permission, he took photographs of her cellphone

screen, revealing the various texts exchanged between the Informant and contacts labeled

in the cellphone as “Joseph Davis” and “Joseph Other.” Davis objected to the admission

of the photographs, contending that it violated Federal Rule of Evidence 901, which

provides, “To satisfy the requirement of authenticating or identifying an item of evidence,

the proponent must produce evidence sufficient to support a finding that the item is what

the proponent claims it is.”     Davis argues that the government did not properly


                                            7
authenticate the photographs in that it did not provide any evidence to support a

conclusion that it was in fact he who was sending the text messages to the Informant,

such as by introducing evidence that his phone numbers matched the phone numbers for

“Joseph Davis” and “Joseph Other.”            While the photographs themselves were

authenticated by Jenkins as accurate portrayals of the texts he was photographing, he

concededly could not link the texts to the defendant Davis by a phone number, even

though the photographs did accurately reveal that the texts were coming from contacts

labeled “Joseph Davis” and “Joseph Other.”

       The government contends that the district court did not unreasonably conclude that

a reasonable jury could find that Jenkins understood enough about the subject matter of

the text messages and their context “to authenticate them” and that therefore the court

correctly concluded that the absence of phone numbers or other information directly

identifying the sender of the texts to the Informant’s cellphone simply went to the weight

of the evidence, not its admissibility.

       We recognize that the district court’s role, as the presider over the trial, “is to

serve as gatekeeper in assessing whether the proponent has offered a satisfactory

foundation from which the jury could reasonably find that the evidence is authentic.”

United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009).           But “the burden to

authenticate under Rule 901 is not high”; the “court must merely be able to conclude that

the jury could reasonably find that the evidence is authentic, not that the jury necessarily

would so find.” United States v. Recio, 884 F.3d 230, 236–37 (4th Cir. 2018) (internal

quotation marks and citation omitted). Thus, we require only a prima facie showing that

                                             8
the “true author” is who the proponent claims it to be. Id. at 237; see also United States

v. Zhu, 854 F.3d 247, 257 (4th Cir. 2017); United States v. Cornell, 780 F.3d 616, 629

(4th Cir. 2015); United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014). And the

prima facie showing “may be accomplished largely by offering circumstantial evidence

that the documents in question are what they purport to be.” Vidacak, 553 F.3d at 350.

      We conclude that in this case, the record contains ample contextual evidence to

create a prima facie showing that the Informant was, in fact, texting with the defendant

Davis when her cellphone showed the texts to be from “Joseph Davis” or “Joseph Other.”

First, the clear purpose manifested by the substance of the texts was to arrange the place

of the controlled buy and to arrive at an agreed-upon price for the drugs. For example,

the Informant texted, “Where am I going to[]” and “I’m riding in circles where do I go,”

to which “Joseph Other” responded, “The mail box.” The Informant then drove to “the

mail box” — the mailbox cluster for Davis’s apartment complex — and waited for ten

minutes, after which Davis arrived and engaged in the controlled buy, as observed by

witnesses. This context alone was sufficient to support the conclusion that the Informant

was actually texting with Davis.

      But also, in a similar vein, many of the texts exchanged during the hour before the

transaction took place addressed the price for the purchase of the two ounces of

methamphetamine that the Informant had agreed to buy. The street price, as Officer

Jenkins testified, was $900 per ounce, and “Joseph Other” and the Informant were

debating whether the transaction for two ounces should be for a price lower than the

$1,800 street price for two ounces — anywhere from $1,600 to $1,750. About 10 to 15

                                            9
minutes before the transaction took place, the Informant texted, “So what’s the price,” to

which “Joseph Other” texted, “1750.”         A few minutes later, after the Informant

complained about the price as high, “Joseph Other” texted, “I know what I told u I’m not

gonna say 16 when I pay more than that.” A few minutes later, the Informant texted, “I

mean I thought the most you would do was 1700 like you said.” She then continued “I’m

at mailbox,” and “Joseph Other” texted back, “I didn’t say that,” to which the Informant

texted, “I’m at the mailbox.” “Joseph Other” continued, “It’s good shit don’t let the little

stuff fool u.” The transaction that then actually occurred a few minutes later involved

Davis’s sale of 54.15 grams (two ounces) of methamphetamine, and it was indeed “good

shit,” as “Joseph Other” texted — 96% pure, as determined by laboratory tests. Thus, the

texting with “Joseph Other” was again linked to the real-world conduct of the transaction

with the defendant Davis, about which there was direct witness testimony.

       In addition, during the course of texting to set up the controlled buy, the Informant

and Davis engaged in a telephone conversation, which Officer Jenkins confirmed, as he

was able to identify Davis’s voice. While Davis testified at trial and denied that it was

his voice in the call, he acknowledged that the telephone call was made to “the same

number that [the Informant] was texting on . . . October 11.”

       Moreover, while Davis also denied sending the Informant the texts shown on the

photographs, there was no explanation at trial that the contact label on those texts —

“Joseph Davis” and “Joseph Other” — could have referred to any person other than the

defendant Davis, with whom the Informant had regularly been texting. Davis seemed to

acknowledge as much at trial:

                                            10
       Q. Did you meet with [the Informant] on October 11, 2016?

       A. I don’t know. We had been going back and forth about the money that
       she was supposed to be paying me back, or whatever, her and her
       boyfriend, or whatever, and so I don’t remember the dates or whatever.
       She’s come up there a couple times though. Most of the time it was to
       borrow money.

       Q. So you’re saying the texts on October 11th were about money that she
       owed you?

       A. Some of them, yes, sir. Actually, the text was from — they was three
       people, actually, in the text.

(Emphasis added).

       Finally, as broader contextual evidence, Officer Jenkins testified not only that he

was with the Informant during the 12 hours before the controlled buy, as the Informant

was sending and receiving text messages to set up the transaction, but also that he had

knowledge of the entire investigation into Davis and the incidents referred to in the texts

involving Davis, supporting Jenkins’s conclusion that the texts on the Informant’s

cellphone were from Davis.

       We conclude that the government amply made the prima facie showing required

by Rule 901 and that the district court did not abuse its discretion in admitting the

photographs that Jenkins took of the Informant’s cellphone screen. Any doubt remaining

about whether the “Joseph Davis” or “Joseph Other” was actually the defendant Davis

was appropriately left for the jury to resolve. See Zhu, 854 F.3d at 257.




                                            11
                                            C

      Finally, Davis contends that the district court abused its discretion in admitting the

recording of a telephone conversation between the Informant and purportedly Davis,

which Officer Jenkins testified was in fact a conversation between the Informant and

Davis based on his recognition of their voices.        The telephone call addressed the

upcoming controlled buy and took place among the various texts exchanged that day

between the Informant and “Joseph Other,” setting up the controlled buy.            Jenkins

testified that he was familiar with Davis’s voice from other “phone calls” and from “a

couple of hours of speaking back and forth while in his residence and during an interview

process” of Davis. Davis argues that this was insufficient to authenticate the recording.

We disagree.

      Federal Rule of Evidence 901(b)(5) states that “[a]n opinion identifying a person’s

voice — whether heard first hand or through mechanical or electronic transmission or

recording — based on hearing the voice at any time under circumstances that connect it

with the alleged speaker” satisfies the requirement of authenticating evidence. Thus, we

conclude that Jenkins’s testimony that his in-person conversations with Davis enabled

him to recognize the voice on the telephone as Davis’s was sufficient authentication.

Again, any further doubt could be resolved by the jury.


                                            III

      In sentencing Davis, the district court calculated Davis’s advisory Guidelines

range by relying in part on its finding that Davis was responsible for 4.5 kilograms or


                                            12
more of methamphetamine. Based on that finding, the court calculated a total offense

level of 42, which, when combined with Davis’s criminal history category of V, resulted

in an advisory Guidelines sentencing range of 360 months’ to life imprisonment. The

court imposed a downward-variance sentence of 260 months’ imprisonment for the drug-

trafficking offense and 120 months for the felon-in-possession offense, to be served

concurrently.

       Davis objected to the court’s drug-quantity finding on the ground that it was based

on the trial testimony of coconspirators Shaw and Carroll, and the jury had found Davis

not guilty on the conspiracy count that involved Shaw and Carroll. The court overruled

the objection, explaining:

       Looking at the objections, the Court takes note that defendant has objected
       to certain aspects of the facts that would come under the heading of Offense
       Conduct. Those objections . . . appear to conflict with trial testimony,
       which is what the probation officer has related under Offense Conduct.
       [D]efendant’s contentions are otherwise noted for information purposes,
       albeit the Court doesn’t believe they’re supported by the evidence at trial,
       this Court having heard the evidence. So these objections are overruled.

And the court later explained that it found that Shaw and Carroll testified “convincingly”

as to drug amounts.

       Davis now argues that his sentence was procedurally unreasonable because, in

overruling his objection, the district court did not specifically mention that the jury found

him not guilty of participating in the drug-trafficking conspiracy, and the court needed to

explain why it purportedly “disagreed” with the jury and found credible the testimony

that the jury allegedly did not.



                                             13
      In response, the government notes that the district court was entitled to consider

acquitted conduct in establishing drug quantities and that once a court explained that it

had found the testimony of Davis’s alleged coconspirators “convincing,” the court was

“under no obligation to further explain why it found that testimony convincing and

supported its choice of sentence with an adequate explanation.”

      Of course, it is well established that a sentencing judge “must adequately explain

the chosen sentence to allow for meaningful appellate review and to promote the

perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). Moreover,

the Supreme Court has explained that “[t]he appropriateness of brevity or length,

conciseness or detail, when to write, what to say, depends upon circumstances.

Sometimes a judicial opinion responds to every argument; sometimes it does not;

sometimes a judge simply writes the word ‘granted’ or ‘denied’ on the face of a motion

while relying upon context in the parties’ prior arguments to make the reasons clear.”

Rita v. United States, 551 U.S. 338, 356 (2007).      At bottom, the obligation of the

sentencing judge is to “set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Id; see also Chavez-Meza v. United States, 138 S. Ct. 1959,

1963–66 (2018).

      At Davis’s sentencing, the district court spoke at length — covering four pages of

transcript — explaining the sentence he was imposing on Davis, and this explanation

included responses to the arguments that Davis had made. In addition, the court spent an

additional two pages explaining its rulings on Davis’s objections to various sentencing

                                           14
factors recommended in the presentence report. Davis argues now, however, that the

court needed to explain more about why it accepted the presentence report’s finding that

he was responsible for at least 4.5 kilograms of methamphetamine. We disagree, as we

conclude that the court’s explanations were sufficient.

       The court explained its understanding of Davis’s argument and why it rejected it,

finding that Davis’s position was not supported by the evidence at trial. It said that it

heard the evidence presented at trial of drug quantities attributable to Davis and found it

convincing. This explanation thus addresses Davis’s argument that the court should not

have credited the testimony because the jury allegedly did not. Indeed, it provided this

court with sufficient reasons for the drug-quantity finding that the finding could be

reviewed.

       Animating Davis’s position seems to be the view that a court may not consider

acquitted conduct in establishing drug amounts. That, however, is not the law. “It has

long been established that sentencing courts may consider acquitted conduct in

establishing drug amounts for the purpose of sentencing.”        United States v. Perry,

560 F.3d 246, 258 (4th Cir. 2009). Of course, the court must find the drug amounts

established by a preponderance of the evidence. Thus, even if a court knows that a jury

had a reasonable doubt about drug quantities, that doubt would not preclude the court’s

finding of those quantities by a preponderance of the evidence, a lower standard.

       More importantly, Davis’s argument presumes that in acquitting Davis on the

conspiracy count, the jury made a factual finding about drug quantities testified to by the

coconspirators. But that is too much to presume because the jury’s not-guilty verdict on

                                            15
the conspiracy count could have been based on numerous reasons relating to doubt about

Davis’s involvement or the absence of proof of an element of the crime. A finding of the

drug quantity involved was therefore not necessary to a verdict of acquittal on the

conspiracy count.

      As the district court acted within its lawful discretion by relying on testimony

relating to an acquitted count, its explanation that it found coconspirator testimony

convincing and Davis’s argument to the contrary to be unsupported was an adequate

explanation.

                                    *      *      *

      The judgment of the district court is accordingly

                                                                           AFFIRMED.




                                           16
