                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5102


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WINZEL DALLAS JACOBS, a/k/a Star, a/k/a OG,

                Defendant - Appellant.



                            No. 09-5104


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WINZEL DALLAS JACOBS,

                Defendant - Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro and Durham.   William
L. Osteen, Jr., District Judge.   (1:08-cr-00319-WO-1; 1:09-cr-
00114-WO-2)


Submitted:   October 14, 2010             Decided:   November 4, 2010


Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Marc L. Resnick, Washington, D.C., for Appellant.       John W.
Stone, Jr., Acting United States Attorney, Robert A. J. Lang,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

             Winzel       Dallas        Jacobs         appeals     his      conviction         and    96

month sentence for one count of possession of a firearm by a

felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006),

and   one    count     of    conspiracy            to    distribute             cocaine    base,      in

violation of 21 U.S.C. §§ 841(a)(1), 846 (2006).                                   We affirm.

              Jacobs      makes     four       challenges          to       his    sentence.          He

claims      that    the     district          court      erred        in     (1) enhancing           his

sentence for obstruction of justice and possession of a stolen

firearm;     (2) calculating            his     criminal         history;          (3) failing        to

impose   a    variant       sentence          based      on   the       crack         cocaine/powder

cocaine sentencing disparity; and (4) admitting the testimony of

a   Government      witness        at    sentencing           on      the       issue    of   whether

Jacobs is a member of a gang.

             An      appellate               court       reviews            a      sentence          for

reasonableness under an abuse-of-discretion standard.                                         Gall v.

United States, 552 U.S. 38, 51 (2007).                                  This review requires

consideration          of     both           the        procedural              and     substantive

reasonableness of a sentence.                    Id.      First, the court must assess

whether the district court properly calculated the guidelines

range,      considered       the        28    U.S.C.       § 3553(a)              (2006)      factors,

analyzed      any      arguments             presented           by        the        parties,       and

sufficiently explained the selected sentence.                                   Id. at 49-50; see

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n

                                                   3
individualized         explanation        must       accompany     every    sentence.”);

United    States       v.    Carter,      564       F.3d    325,   330   (4th Cir. 2009)

(same).       An extensive explanation is not required as long as the

appellate court is satisfied “‘that [the district court] has

considered the parties’ arguments and has a reasoned basis for

exercising [its] own legal decisionmaking authority.’”                            United

States    v.     Engle,      592   F.3d    495,       500    (4th Cir. 2010)    (quoting

Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied,

___ U.S. ___, 2010 WL 23245029 (October 4, 2010).

               Even if the sentence is procedurally reasonable, the

court     must    consider         the    substantive         reasonableness     of   the

sentence, “examin[ing] the totality of the circumstances to see

whether the sentencing court abused its discretion in concluding

that the sentence it chose satisfied the standards set forth in

§ 3553(a).”       United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010).



                 I.     Obstruction and Firearm Enhancements

               Jacobs, citing Apprendi v. New Jersey, 530 U.S. 466

(2000), and United States v. Booker, 543 U.S. 220 (2005), claims

that    his    Sixth        Amendment     rights       were    violated     because   the

district       court        did    not    find        the     facts      underlying   the

enhancements beyond a reasonable doubt.                       We conclude that he is

mistaken.

                                                4
              First, Jacobs specifically withdrew his objections to

his   obstruction       of   justice       enhancement     at     sentencing.      In

addition, he did not object in district court to the enhancement

for possessing a stolen firearm.                Accordingly, these claims are

not preserved for appeal and are reviewed for plain error.                         See

United    States   v.    Olano,      507   U.S.   725,    731-32    (1993);     United

States v. White, 405 F.3d 208, 218-20 (4th Cir. 2005).                           Under

the   plain    error    test,   a    defendant     must    show    that   (1)    error

occurred; (2) the error was plain; and (3) the error affected

his substantial rights.              Olano, 507 U.S. at 732.              Even when

these conditions are satisfied, we may exercise our discretion

to notice the error only if the error “seriously affect[s] the

fairness,       integrity       or     public      reputation        of    judicial

proceedings.”      Id. (internal quotation marks omitted).

              First, it is clear that Jacobs misreads Apprendi and

Booker.     Contrary to Jacobs’s claim that those cases require a

district court to find facts that will enhance a sentence beyond

a reasonable doubt, Apprendi actually holds that “[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. at 490.        Here, Jacobs was not subjected to an enhanced

penalty beyond the prescribed statutory maximum.                    Thus, Apprendi



                                            5
and Booker do not apply (except to the extent that Booker makes

the Guidelines advisory on the sentencing court).

              In    any     event,   the    district    court     properly      imposed

sentencing         enhancements      for     possession     of     a    firearm       and

obstructing        justice.       The     facts   underlying     both    enhancements

were set forth in Jacobs’s presentence report and in adopting

those   factual          findings,   the   district     court    did    not    err,   let

alone plainly so.



                         II.   Criminal History Calculation

              Jacobs next argues that the court erred in calculating

his criminal history category.               Specifically, he argues that his

2003    New   Jersey        controlled     substance    distribution          conviction

should have been counted as one criminal history point, rather

than two, because he received a sentence of probation.                            Jacobs

correctly notes that if the conviction were accorded one point,

rather than two, his total criminal history points would be nine

rather than ten, and he would have a criminal history category

of IV, rather than V.                See U.S. Sentencing Guidelines Manual

(USSG) Chapter 5, part A.

              Pursuant to USSG § 4A1.1(b), two points are added to

the defendant’s criminal history score for each prior sentence

of imprisonment of at least sixty days.                         The district court

considered         the     records   of     the   New    Jersey    conviction         and

                                             6
concluded that Jacobs received a sentence of incarceration of

seventy-one        days     and     was     given     credit         for    time       served.

Crediting     a    defendant        for    time     served      does       not    equate      to

imposing a sentence of probation only.                        We accordingly conclude

that   the   district       court    did     not    err   in    calculating            Jacobs’s

criminal history.



                            III. Sentencing Disparity

             Jacobs next argues that the district court erred by

not considering a departure from the Guidelines based on the

sentencing disparities between powder cocaine and cocaine base.

This    is        essentially        a      challenge          to     the        substantive

reasonableness of the sentence.

             Jacobs        did     not      request       a    sentence           below       the

Guidelines; rather, he specifically requested one at the low end

of his advisory Guidelines range.                   Moreover, he did not request

that the district court consider the crack/powder disparity when

imposing a sentence.              Our review is therefore for plain error.

See Olano, 507 U.S. at 731-32.

             After         this      court         considers          the        substantive

reasonableness        of    the     sentence,       it    takes      into        account      the

totality     of    the     circumstances.           Gall,      552     U.S.       at    51.    In

assessing    the     substantive          reasonableness        of    a    sentence,       this

court presumes that a sentence within the advisory Guidelines

                                             7
range is reasonable.           Rita, 551 U.S. at 347; United States v.

Smith, 566 F.3d 410, 414 (4th Cir. 2009).                Even if we would have

imposed a different sentence, this fact alone is insufficient to

justify reversing the district court.                  United States v. Evans,

526   F.3d   155,   160    (4th Cir.),        cert.   denied,   129    S.    Ct.   476

(2008).

             Contrary     to   Jacobs’s       representations,        the   district

court did consider the cocaine base/cocaine powder sentencing

disparity.     Specifically, the court noted that:

       [W]hile I am well aware of the criticism of the 100-
       to-1 ratio as well as the 20-to-1 ratio and various
       positions both of the Department of Justice and the
       Sentencing Commission at the present time in this case
       . . . some of the very serious attendant harms to the
       crack cocaine . . . that is, gang membership and at
       least arming oneself    . . . with a firearm . . .
       suggest that a sentence within the guideline range
       constitutes a reasonable sentence.

             In Spears v. United States, 129 S. Ct. 840 (2009), the

Supreme Court acknowledged that Kimbrough v. United States, 552

U.S. 85 (2007), stood for the proposition that sentencing courts

have the “authority to vary from the crack cocaine Guidelines

based on policy disagreement with them, and not simply based on

an    individualized      determination       that    they   yield    an    excessive

sentence in a particular case.”               Spears, 129 S. Ct. at 843.           In

Spears, the Supreme Court approved of the sentencing court’s

decision to apply a twenty-to-one ratio when imposing a sentence

in a typical crack cocaine case.                Id. at 844.      However, it is

                                          8
one thing to say that a district court may vary from a Guideline

on policy grounds; it is quite a leap, however, to hold that it

must.   See id. (holding “we now clarify that district courts are

entitled to reject and vary categorically from the crack-cocaine

Guidelines    based    on    a     policy          disagreement     with      those

Guidelines”).

          Here, the district court clearly understood it had the

authority to vary below the Guidelines based on a consideration

of something less than the current sentencing disparity between

crack and powder cocaine.        It properly calculated the Guidelines

using the current base offense level for the quantity of crack

cocaine for which Jacobs was held responsible.                  Accordingly, we

decline to conclude that the sentence was not reasonable.



              IV.   Evidence of Jacobs’s Gang Membership

          Jacobs finally claims error in the court’s decision to

allow Kymberli Oakes, a police officer and purported expert on

gang investigation, to testify that in her opinion, Jacobs was a

member of the Valentine Bloods gang.

          A     sentencing       court       may     consider     any   relevant

information “without regard to its admissibility under the rules

of evidence applicable at trial, provided that the information

has sufficient indicia of reliability.”                 USSG § 6A1.3(a).         We

have    “construed     various       Supreme          Court       decisions     as

                                         9
‘recogniz[ing]        a    due        process    right       to   be    sentenced         only    on

information which is accurate.’”                      United States v. Nichols, 438

F.3d 437, 440 (4th Cir. 2006) (quoting United States v. Lee, 540

F.2d 1205, 1211 (4th Cir. 1976)).

              Here,       the     district       court        recognized           the     relaxed

standard of evidence admission applied at sentencing.                                    Moreover,

the   court    allowed          the    parties    to     voir     dire       the    witness      and

concluded      that       her    testimony       was     reliable.            We    decline      to

disturb that finding on appeal.

              Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions        are        adequately      presented         in    the       materials

before   the    court       and       argument       would    not      aid    the    decisional

process.

                                                                                          AFFIRMED




                                                10
