                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4655


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHNNY RAY SPARROW, a/k/a Johnny Blaze,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:11-cr-00009-F-1)


Submitted:   June 27, 2013                 Decided:   July 16, 2013


Before DAVIS, KEENAN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Cindy H. Popkin-Bradley, CINDY H. POPKIN-BRADLEY, ATTORNEY AT
LAW, Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Joshua L.
Rogers, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Johnny      Ray     Sparrow,     Jr.,          entered     a    guilty       plea   to   the

charges     of     distributing,            and        aiding         and      abetting       the

distribution of, five or more grams or more of cocaine base

(crack) and a quantity of cocaine, in violation of 21 U.S.C. §

841(a)(1)   and     18    U.S.C.     §     2.        The   district         court    sentenced

Sparrow to a term of imprisonment of 78 months.

     On appeal, Sparrow argues that the district court erred in

its sentencing determination.                   Sparrow contends that the court

included    certain          drug    quantities            as       relevant       conduct     in

calculating      his   advisory      sentencing            guidelines        range,      without

finding by a preponderance of the evidence that those quantities

were attributable to him.             Upon our review, we conclude that the

district    court      did    not    err    and,       accordingly,          we    affirm      the

district court’s judgment.



                                                I.

     In March 2008, Sparrow and a co-defendant, Darian Jevon

Cantey, sold 37.5 grams of cocaine and 15.8 grams of cocaine

base to a confidential informant working for the Lenoir County

Sheriff’s   Office       in    Kinston,         North      Carolina         (the   March      2008

transaction).                After       the         transaction            was     completed,

investigators conducted a search of Sparrow’s residence, where

they found an unidentified quantity of marijuana and a $20 bill

                                                2
that was part of the “buy money” provided by the confidential

informant.

      The March 2008 transaction formed the basis of Sparrow’s

indictment,        in    which     he   was   charged   with    distributing,        and

aiding and abetting the distribution of, five or more grams of

cocaine base (crack) and a quantity of cocaine, in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.                        Sparrow entered a

guilty     plea    to     those    charges    without   the    benefit      of   a   plea

agreement.

      After the district court accepted Sparrow’s guilty plea,

the       United        States     Probation       Office     prepared       Sparrow’s

presentence investigation report (PSR).                 In addition to the drug

quantities arising from the March 2008 transaction, the findings

in the PSR attributed additional drug quantities to Sparrow from

prior transactions as part of the relevant conduct of Sparrow’s

present offenses.            See U.S.S.G. § 1B1.3.            The PSR stated that

investigators interviewed two cooperating individuals, Clifton

Edwards     and    Kendall        Wells,   who    attested    that   they    purchased

drugs from Sparrow. 1             According to the PSR, Edwards stated that

he purchased at least 1.5 ounces of cocaine from Sparrow, and

      1
       The PSR also included a discussion of a third cooperating
individual, Maurice Brown, who told investigators that he
purchased drugs from Cantey, Sparrow’s co-defendant.         The
quantity of drugs that Brown stated he purchased from Cantey was
not attributed to Sparrow in calculating Sparrow’s sentence.



                                              3
that    he   had   seen    Sparrow        possess        an    additional          3    ounces         of

cocaine and 2 pounds of marijuana.                            The PSR also stated that

Wells began purchasing cocaine from Sparrow in 2000, and that in

an 18-month period Wells purchased 108 ounces of cocaine from

Sparrow.

       In combination with the drug quantities at issue in the

March 2008 transaction, the calculations in the PSR indicated

that    Sparrow     was    responsible         for       the     distribution               of    109.5

ounces (3,104.33 grams) of cocaine, 15.8 grams of crack cocaine,

and 2 pounds (907.2 grams) of marijuana, for a total marijuana-

equivalency        rate    of        678.2        kilograms.               Based        on        these

calculations, the PSR stated that Sparrow’s base offense level

under    U.S.S.G.    §     2D1.1(c)(6)        was       28.          After    3    points          were

deducted     for    acceptance         of    responsibility,               resulting             in    an

adjusted     offense      level      of     25,    and        given    Sparrow’s            criminal

history category of III, the PSR stated that Sparrow’s advisory

guidelines     range      was    a    term        of    between       70     and       87    months’

imprisonment.

       Sparrow     filed    written         objections          to    the    PSR,        accepting

responsibility for the drug quantities at issue in the March

2008    transaction,       but    asserting            that    he     should       not       be       held

accountable for the additional drug quantities attributed to him

by Edwards and Wells.             Sparrow contended in his objections that



                                              4
he did not know Edwards and Wells, that they were not credible,

and that their accusations against him were false.

       The district court held a sentencing hearing, at which the

government called as a witness Detective Michael Shawn Howard of

the Lenoir County Sheriff’s Office.                         Howard, who was the case

agent     for       the        County’s      investigation          of        Sparrow’s     drug

activities,         provided      testimony        concerning      his        interviews    with

Edwards    and       Wells.       Howard      testified        that    Edwards       and   Wells

stated that Sparrow distributed to them certain quantities of

drugs, as recounted in the PSR.                         Howard further testified that

he found Edwards and Wells to be reliable, because information

provided       by    them       led    to    the       convictions       of    several     other

defendants,         and     because         Edwards      and   Wells      provided         Howard

certain    identifying           information           about   Sparrow        that   supported

their statements.

       After        Sparrow’s          counsel          cross-examined          Howard,      the

government argued that it had “proven [the] drug weight by a

preponderance of the evidence.”                         The district court stated in

response       that       it     was    “going         to   find      that      [Sparrow]     is

responsible for the distribution of 109.5 ounces of cocaine,

15.8    grams       of   crack    cocaine,         [and]    two    pounds       of   marijuana,

which have a marijuana equivalency of 678.2 kilograms,” thus

adopting the drug weight calculation from the PSR.                               Accordingly,

the district court overruled Sparrow’s objections to the PSR,

                                                   5
and   the     court    formally     adopted       the   findings        in    the    PSR,

including the guidelines range of 70-87 months’ imprisonment.

The   court    heard   argument     from       Sparrow’s      counsel   and    a    brief

statement     from     Sparrow,    after       which    the    court     announced      a

sentence of 78 months’ imprisonment and a period of supervised

release of three years.           The court stated that, in imposing this

sentence, the court had considered Sparrow’s advisory guidelines

range and the factors set forth in 18 U.S.C. § 3553(a).

      After sentencing Sparrow, the district court held a bench

conference with the parties, during which the court expressed

dissatisfaction with the government’s practice at sentencing of

offering the hearsay testimony of an investigator, rather than

presenting     testimony     from    the       cooperating      individuals.           In

relevant part, the district court stated that:

      Now, this business of having trials on the amounts of
      drugs, if you would bring the people in here that he’s
      denied knowing, the next time I’ll take away his
      acceptance of responsibility. I want an end to this.
      . . . If he won’t accept it, the [drug weight] amount
      on his plea agreement, you [the assistant United
      States Attorney (AUSA)] damn well be prepared to prove
      it . . . . And if you [the AUSA] can’t get this thing
      straight and get it proved right then I’m going to
      find with the defendant. . . .      Do you [the AUSA]
      understand to tell your boss that? . . .     Well, you
      can tell him, by God, that you’ve seen a judge that’s
      mad as hell about this.

The   district    court    entered    its       judgment,      and   Sparrow        timely

filed a notice of appeal.




                                           6
                                        II.

      Sparrow’s    sole    argument     on    appeal    is     that    the    district

court erred in sentencing him on the basis of the drug weight

that included the drug quantities attributed to him by Edwards

and Wells, because, in Sparrow’s view, the district court did

not find that drug weight attributable to him by a preponderance

of the evidence.       Sparrow bases this contention primarily on the

statements made by the court during the bench conference.                              We

disagree with Sparrow’s argument.

      As a general matter, we review a district court’s sentence

for reasonableness under an abuse of discretion standard.                         Gall

v.   United    States,    552   U.S.    38,    51    (2007);    United       States    v.

Evans, 526 F.3d 155, 161 (4th Cir. 2008).                    We review for clear

error    the   district    court’s      factual       findings,       including       the

court’s calculation of the quantity of drugs attributable to a

defendant with relation to his sentencing.                      United States v.

Slade,   631    F.3d   185,     188   (4th    Cir.    2011);    United       States    v.

Mehta,   594    F.3d   277,     281   (4th    Cir.    2010);    United       States    v.

Randall, 171 F.3d 195, 210 (4th Cir. 1999).

      For purposes of sentencing, the government must prove the

drug quantities attributable to the defendant by a preponderance

of the evidence.       United States v. Milam, 443 F.3d 382, 386 (4th

Cir. 2006); Randall, 171 F.3d at 210.                    In this context, the

district court is entitled to consider any relevant evidence,

                                         7
including hearsay statements, so long as they are reliable, even

though such statements might be inadmissible during a trial.

Randall, 171 F.3d at 210.

       Sparrow’s argument is untenable because it would require us

to determine that the district court deemed Edwards’ and Wells’

statements      unreliable,        yet    nevertheless           overruled     Sparrow’s

objections to the PSR and adopted the PSR’s findings despite the

government’s purported failure of proof.                        Such a conclusion is

not supported by the record.

       The district court considered the findings in the PSR and

heard    testimony     from   Howard       concerning           his   interviews       with

Edwards and Wells, including the reasons why Howard thought that

the information they provided was credible and reliable.                           After

Howard’s testimony, the government explicitly argued that it had

“proven [the] drug weight by a preponderance of the evidence.”

Immediately thereafter, the court overruled Sparrow’s objection

to     the    calculation     in     the       PSR     of       the   drug    quantities

attributable to him, and the court adopted the PSR and stated

that    the    findings    contained       in    the      PSR     were     “credible    and

reliable.”      In light of this sequence of events, it is readily

apparent      that   the   court    did    find      by     a   preponderance     of    the

evidence      that   the   drug     quantities        relating        to   Edwards’    and

Wells’ statements, which were incorporated in the PSR’s drug

weight calculation, were properly attributable to Sparrow.

                                           8
     We   further     note   that      we   are      not    persuaded        by    Sparrow’s

assertion     that   the     district       court’s        comments         at    the     bench

conference,      after     the    court         announced       Sparrow’s          sentence,

indicate that the court was not convinced that the government

had met its evidentiary burden.                      Although the district court

expressed a clear preference that the government present direct

rather    than   hearsay     testimony          in   future     sentencing          hearings

involving     disputed     drug       quantities,          we   will    not        draw     the

negative inference that the lack of such testimony in this case

constituted      a   failure     of    proof. 2         Sparrow        is        required    to



     2
       Nevertheless, we note our concern with the remarks made by
the district court during the bench conference. Contrary to the
district court’s suggestion, a defendant who pleads guilty to an
indictment without a plea agreement will generally be eligible
for a reduction in his base offense level under the sentencing
guidelines for acceptance of responsibility, even if that
defendant does not acquiesce to the government’s allegations of
any alleged “relevant conduct” that was not charged in the
indictment. See U.S.S.G. § 3E1.1 cmt. n. 1(A) (“A defendant may
remain silent in respect to relevant conduct beyond the offense
of conviction without affecting his ability to obtain a
reduction under this subsection.”); Elliott v. United States,
332 F.3d 753, 766 (4th Cir. 2003). It is only when a defendant
“falsely denies” or “frivolously contests” relevant conduct that
the district court determines to be true does a defendant lose
his eligibility for the acceptance of responsibility reduction.
See U.S.S.G. § 3E1.1 cmt. n. 1(A) (“However, a defendant who
falsely denies, or frivolously contests, relevant conduct that
the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility.”); Elliott, 332
F.3d at 766.      Thus, a defendant who merely requires the
government to meet its proof burden to establish relevant
conduct, in the absence of any “false denial” by the defendant,
does not jeopardize his eligibility for the reduction, as the
(Continued)
                                            9
establish that the district court clearly erred in adopting the

drug weight calculation in the PSR, Slade, 631 F.3d at 188, and

he has failed to meet his burden here.

      For these reasons, we affirm the district court’s judgment.

We   dispense   with   oral   argument      because     the   facts   and   legal

contentions     are   adequately   presented       in   the   materials     before

this Court and argument would not aid the decisional process.



                                                                       AFFIRMED




district   court’s     comments    during    the    bench     conference    would
suggest.



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