                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4730



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DARYL W. SMITH, a/k/a D-Nice,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
District Judge. (1:03-cr-00039-FPS)


Submitted:   December 20, 2006            Decided:   February 6, 2007


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


L. Richard Walker, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, John C. Parr, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Daryl W. Smith was convicted in 2003 of conspiracy to

distribute more than fifty grams of cocaine base (crack) (Count 1),

aiding and abetting the distribution of crack within 1000 feet of

a playground (Count 29), and distribution of more than five grams

of crack (Count 30).        He was sentenced to a term of 360 months

imprisonment.      We affirmed Smith’s convictions, but remanded his

case for resentencing in light of United States v. Booker, 543 U.S.

220 (2005).     United States v. Smith, 138 F. App’x 557 (4th Cir.

2005) (No. 04-4420).      On remand, the district court reimposed the

same sentence.     Smith appeals his sentence, contending that it is

unreasonable because (1) the district court’s finding concerning

the quantity of crack attributable to him was based on co-defendant

Vernon Maxwell’s trial testimony, which Smith claims was not

credible; (2) the court refused to consider as grounds for a

variance the dismissal of a juror during his trial; and (3) the

court   declined    to   impose   a   variance   sentence   to   correct   the

disparity between Smith’s sentence and the sentences of his co-

defendants.   We affirm.

           Initially, Smith and nine co-defendants were charged with

conspiring to sell drugs in Clarksburg, West Virginia, near the

Monticello Avenue Playground and a bar called the Vet’s Club.              All

but Smith pled guilty.            At Smith’s trial, numerous witnesses

identified him as their supplier.             At his sentencing, Smith was


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held responsible for 507.3 grams of crack, which resulted from the

seizure of 11.2 grams of crack from the pocket of Smith’s shorts

during a search warrant executed at his home on July 9, 2003, and

the trial testimony of the following witnesses who said they bought

crack from Smith:   Sammy Lockett (3.75 grams); Vernon Maxwell (375

grams); Kelli Freeman (105 grams); Henry Freeman (5 grams); Kevin

Hill (3 grams); Truman White (.6 grams); and Derrick Savage (3.75

grams).

          Maxwell testified at trial that, from the fall of 2002

until the day he was arrested (July 9, 2003), he bought crack from

Smith “about 1,000 times.”   However, when Maxwell was interviewed

by the prosecutor before trial, he proffered as part of his plea

agreement that he bought crack from Smith about fifty times. Later

Maxwell testified before the grand jury that he bought crack from

Smith “about a dozen” times.     When Smith’s attorney confronted

Maxwell at trial with his prior statement to the grand jury,

Maxwell testified that he had misspoken, and should have said he

bought from Smith a dozen times a day.   Although he was pressed on

this point and on his testimony as to how many times he saw Smith

with at least a quarter of an ounce of crack,1 Maxwell maintained

that he had not lied in his grand jury testimony, but had answered

quickly, without sufficient thought.   At both sentencing hearings,


     1
      In his grand jury testimony, Maxwell said he saw Smith with
this amount five or six times; under cross-examination at trial, he
said over a hundred times.

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the district court decided that Maxwell’s trial testimony was

credible, despite his inconsistent prior statements.

            On appeal, Smith first challenges the district court’s

decision to credit Maxwell’s trial testimony with respect to drug

quantity.   We will affirm a post-Booker sentence if it “is within

the statutorily prescribed range and is reasonable.” United States

v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (internal quotation

marks and citation omitted).       “[A] sentence within the proper

advisory Guidelines range is presumptively reasonable.”      United

States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (citations

omitted). When imposing a sentence after Booker, courts must still

calculate the applicable advisory guideline range after making the

appropriate findings of fact and consider the range in conjunction

with other relevant factors under the guidelines and 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2006).       Hughes, 401 F.3d at 546;

United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.

denied, 126 S. Ct. 2054 (2006).    The government has the burden of

proving by a preponderance of the evidence the quantity of drugs

attributable to the defendant.    United States v. Lipford, 203 F.3d

259, 272 (4th Cir. 2000).    The district court’s factual finding

concerning drug quantity is reviewed for clear error.2   Id. at 271.


     2
      In his initial appeal, Smith challenged the district court’s
finding that he was responsible for 507.3 grams of crack for
sentencing purposes. We remanded the case without addressing the
issue on the merits.    Because we did not decide the issue, the
district court was not foreclosed by the mandate rule from

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                Smith      concedes    that    the     district    court’s      decision

concerning the drug quantity was based on its determination of the

credibility           of    Maxwell’s     testimony       and     that     credibility

determinations are within the province of the factfinder.                            See

United States v. Williams, 977 F.2d 866, 870 (4th Cir. 1992)

(reviewing        relevant      conduct       determination       based    on    witness

testimony “with due deference to the trial court’s opportunity to

assess credibility”). However, Smith contends that Maxwell’s trial

testimony diverged so dramatically from his earlier statements that

the district court clearly erred in accepting it.                         We disagree.

The district court had the opportunity to hear and observe Maxwell

as he testified, and was able to assess his credibility.                           As a

result of the vigorous cross-examination conducted by Smith’s

attorney, the court was well aware of the inconsistencies in

Maxwell’s pre-trial statements.                 We are satisfied that the court

did       not   err   in    deciding    that    Maxwell’s    trial    testimony     was

credible. Having made that decision, the court did not clearly err

in determining that Smith was responsible for more than 500 grams

of crack and that a base offense level of 32 applied.

                Next, Smith argues that the district court erred by

failing to consider a variance based on the dismissal of a juror.

In    a    post-Booker       sentencing,       after   the   court   calculates      the


revisiting the issue at the resentencing hearing, and Smith is not
foreclosed from raising it in this appeal. United States v. Bell,
5 F.3d 64, 66 (4th Cir. 1993).

                                          - 5 -
advisory guideline range, it must then consider whether that range

“serves the factors set forth in § 3553(a) and, if not, select a

sentence that does serve those factors.”          United States v. Green,

436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).

In selecting a sentence that serves the § 3553(a) factors, “the

district   court   should   first    look   to   whether   a   departure   is

appropriate based on the Guidelines Manual or relevant case law.”

Moreland, 437 F.3d at 432.     If the resulting departure range does

not address the court’s concerns, the district court may impose a

variance sentence.    Id.

           Here, the district court sentenced Smith to the bottom of

the advisory guideline range after considering defense counsel’s

argument for a variance based on, among other factors, Smith’s

conviction by eleven jurors.        Smith contends that the court erred

in deciding that the dismissal of a juror was not an appropriate

ground for a variance.       He contends that the dismissal of the

twelfth juror made his case highly unusual in that he was deprived

at trial of “the possibility that a fair and impartial twelfth

juror may have disagreed with the other jurors and voted for

acquittal on all counts.”3




     3
      The juror was dismissed because he disclosed during jury
consultations that he knew of Smith some years earlier and stated
that Smith was always in trouble or, as reported by the jury
foreman and other jurors, stated that Smith “was a punk then and
still is a punk.”

                                    - 6 -
            We conclude that Smith has not shown that the court’s

refusal to vary from the guideline range rendered his sentence

unreasonable.    In Smith’s first appeal, we found no error in his

conviction by eleven jurors.          Moreover, the fact of a juror’s

dismissal has no relation to the nature of the offense or the

history and characteristics of the defendant--the factors which are

the focus of § 3553(a).        See United States v. Martinez, 136 F.3d

972, 980 (4th Cir. 1998) (holding that counsel’s competency not

relevant to consideration of § 3553(a) factors relating to nature

of offense and history and characteristics of defendant).

            Finally, Smith asserts that his sentence was considerably

longer than the sentence of any of his nine co-defendants, and

that this disparity is “simply unfair and unsupported by meaningful

facts.” Section 3553(a) provides that “[t]he court, in determining

the particular sentence to be imposed, shall consider . . . the

need to avoid unwarranted sentence disparities among defendants

with   similar   records   who   have   been   found   guilty   of   similar

conduct.”   18 U.S.C.A. § 3553(a)(6).        However, in deciding against

a variance on this ground, the district court found that Smith and

his    co-defendants    were   not   similarly   situated.      The    other

defendants had different criminal histories and had benefitted from

plea agreements.       In addition, Smith received an adjustment for

obstruction of justice based on his threats to co-defendants.             We




                                     - 7 -
conclude that the court did not err in finding that the disparity

was warranted.

           We therefore affirm the sentence imposed by 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




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