                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5188


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JASON CUMMINGS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:08-cr-00226-HEH-1)


Submitted:    July 7, 2009                      Decided:   July 22, 2009


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


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Nia Ayanna
Vidal, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant.   Dana J. Boente, Acting United States Attorney,
Peter S. Duffey, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jason      Cummings    appeals         his    225-month      sentence      for

possession with intent to distribute heroin.                          Cummings raises

three   issues   on     appeal.        First,     Cummings      contends      that    the

district    court’s       use     of     his      post-arrest         statements       in

calculating his sentence violated due process.                         Next, Cummings

argues that the district court erred in finding Cummings’s post-

arrest statements corroborated and reliable.                      Finally, Cummings

asserts that his 225-month sentence was unreasonable, as the

district court failed to adequately consider Cummings’s history

and personal characteristics, or otherwise address the arguments

Cummings’s attorney made during sentencing.                     Finding no merit in

these arguments, we affirm.

           We    review    a     sentence        for    reasonableness        under    an

abuse-of-discretion standard.                Gall v. United States, 552 U.S.

38,     , 128 S. Ct. 586, 597 (2007).                   This review requires our

consideration      of      both        the       procedural       and     substantive

reasonableness of a sentence.            128 S. Ct. at 597.

           In    determining      whether         a    sentence    is    procedurally

reasonable, we first assess whether the district court properly

calculated the defendant’s advisory guideline range.                            Id. at

596-97.    We then consider whether the district court failed to

consider   the   18     U.S.C.    § 3553(a)           factors   and     any   arguments

presented by the parties, selected a sentence based on “clearly

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erroneous facts,” or failed to sufficiently explain the selected

sentence.      Gall, 128 S. Ct. at 597.

              When imposing sentence, the district court “‘must make

an individualized assessment based on the facts presented.’. . .

That is, the sentencing court must apply the relevant § 3553(a)

factors to the specific circumstances of the case before it.

Such individualized treatment is necessary ‘to consider every

convicted person as an individual and every case as a unique

study in the human failings that sometimes mitigate, sometimes

magnify,      the   crime   and    the   punishment      to    ensue.’”       United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting

Gall, 128 S. Ct. at 598).

              Finally, we review the substantive reasonableness of

the    sentence,     “taking      into   account     the      ‘totality      of   the

circumstances, including the extent of any variance from the

Guidelines range.’”         United States v. Pauley, 511 F.3d 468, 473

(4th   Cir.    2007)   (quoting      Gall,    128   S.   Ct.    at   597).        When

reviewing     the   district      court’s    application      of   the   sentencing

guidelines, this Court reviews findings of fact for clear error

and questions of law de novo.                United States v. Osborne, 514

F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008).

A sentence within the properly calculated guideline range may be

afforded an appellate presumption of reasonableness.                         Rita v.



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United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2459, 2462

(2007).

             Cummings      first     asserts           that      the     district       court

violated his due process rights when it used his post-arrest

statements       about    drug     trafficking           as      relevant    conduct       in

calculating the drug weight attributable to him.                            Specifically,

though Cummings was arrested with approximately ninety grams of

heroin, the district court found him responsible for eighteen

kilograms.

            We    find    no   error    by       the   district         court.     We    have

expressly       authorized     lower    courts         to     consider      acquitted     or

uncharged conduct in establishing drug amounts in sentencing, as

long as the quantities are established by a preponderance of the

evidence.       United States v. Perry, 560 F.3d 246, 258 (4th Cir.

2009).    Accordingly, Cummings’s due process argument fails.

             Cummings next argues that the district court erred in

adopting the probation officer’s calculation of the attributable

drug weight, as the post-arrest statements were uncorroborated

and lacking sufficient indicia of reliability.                              We disagree.

After    twice    being    advised      of       his   Miranda *        rights,    Cummings

admitted that he had distributed one and a half kilograms of

heroin    per    month    in   the     year      prior      to    his    arrest.        These

     *
         Miranda v. Arizona, 384 U.S. 436 (1966).



                                             4
statements        were      corroborated         by    the    fact       that   Cummings     was

arrested while driving en route from New York to North Carolina,

in a rental car leased neither in Cummings's name nor in the

names    of    the     other       passengers.          Cummings         was    arrested    with

ninety grams of heroin, which he informed police would be used

in determining whether to expand his drug business to another

region.       Finally, the information Cummings gave regarding the

procedures          used     to     transport         drugs       for    his    business     was

corroborated          by     the     testimony         of     an    agent       of   the    Drug

Enforcement Administration, based on his general knowledge of

drug distribution and his conversation with a law enforcement

officer      in     New    York.      “[T]he      exclusion         of    reliable     evidence

hampers       the     ability       of    sentencing          courts      to    consider     all

relevant       information          about     the       defendant         in    selecting     an

appropriate sentence.”               United States v. Nichols, 438 F.3d 437,

444   (4th     Cir.        2006).        Given    the       established        reliability    of

Cummings’s post-arrest statements, the district court did not

err     in     using        these        statements          to     determine        Cummings’s

appropriate offense level.

              Finally, Cummings argues that his 225-month sentence

was   procedurally           and    substantively           unreasonable.            Concerning

procedural reasonableness, Cummings does not contend that the

district      court        incorrectly      calculated            his    advisory     guideline

range, with the exception of the district court’s consideration

                                                 5
of   Cummings’s        post-arrest         statements,        discussed            supra.     Our

review    of    the        record   convinces        us    that     the      district       court

correctly calculated Cummings’s advisory guidelines range at 188

to 235 months.

               Instead,       Cummings      asserts        that    the       district       court

failed to adequately consider Cummings’s history and personal

characteristics.            This argument lacks merit.                  The district court

took   into     account       Cummings’s        history      and    characteristics,           as

demonstrated by its classification of Cummings as a “major drug

trafficker”          who    had     been    “involved         in    distributing            major

quantities of heroin for quite a period of time.”                                   In light of

Cummings’s extensive involvement in the drug trade, the district

court determined that a sentence toward the upper end of the

guideline range was appropriate.

               The    explanation         offered     by     the    district         court    was

sufficient to demonstrate its individualized assessment of the

circumstances         of     Cummings’s      case         prior    to     pronouncing         the

sentence.        Indeed, “when a judge decides to simply apply the

[g]uidelines to a particular case, doing so will not necessarily

require    lengthy          explanation.”           Rita,     127       S.    Ct.     at    2468.

Instead, where “[c]ircumstances . . . make clear that the judge

rests his decision upon the Commission’s own reasoning that the

[g]uidelines          sentence       is     a       proper        sentence,”          extensive

explanation of the sentence is unnecessary.                                  Id.      Here, the

                                                6
court indicated it had considered all the guideline factors, and

delineated       specific    factors        it     found   to     be    of     particular

importance.       It then pronounced a sentence within the guidelines

range.     See Rita, 127 S. Ct. at 2459, 2462 (approving appellate

presumption       of   reasonableness         to    sentence      within       guidelines

range).          Accordingly,         we   find    that    the     court       adequately

considered and explained the factors that led to the sentence

imposed.      Cummings’s challenge to his sentence is accordingly

without merit.

            Therefore,           we    affirm      Cummings’s          conviction     and

sentence.        We dispense with oral argument because the facts and

legal    contentions       are    adequately       presented      in    the     materials

before     the    court,    and       further      argument      will    not    aid   the

decisional process.

                                                                                 AFFIRMED




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