                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________             FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-13373         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        APRIL 10, 2012
                                      ________________________        JOHN LEY
                                                                        CLERK
                            D.C. Docket No. 4:11-cr-00004-RH-WCS-1

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                         lPlaintiff – Appellee,

                                               versus

DERRICK ANTHONY GRACIA,

lllllllllllllllllllllllllllllllllllllll                         lDefendant – Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Northern District of Florida
                                 ________________________

                                           (April 10, 2012)

Before CARNES, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         Derrick Gracia pleaded guilty to possession of cocaine with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and was sentenced
to 51 months’ imprisonment. Gracia appeals, contending that his sentence is

unreasonable because the district court erred in determining the amount of cocaine

attributable to him for sentencing purposes and, in so doing, also employed an

erroneous burden of proof. Finding no error on either point, we affirm.

      We review the reasonableness of a sentence for abuse of discretion. Gall v.

United States, 552 U.S. 38, 41 (2007). This review is two-fold, looking both at the

procedure that resulted in the sentence and the substance of the sentence itself.

United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010). We review for clear

error the district court’s findings regarding the quantity of drugs attributable to a

defendant for purposes of establishing the base offense level at sentencing. United

States v. Singleton, 545 F.3d 932, 934 & n.2 (11th Cir. 2008). When an appellant

does not clearly raise an objection before the district court, our review is limited to

asking whether there was plain error that affected both the appellant’s substantial

rights and the fairness, integrity, or public reputation of judicial proceedings.

United States v. Massey, 442 F.3d 814, 818 (11th Cir. 2006).

      Gracia contends his sentence is procedurally unreasonable because the

district court erroneously found that he had sold one kilogram of cocaine in the six

months prior to his arrest and included that amount as relevant conduct in the

calculation of his sentence. At Gracia’s sentencing hearing, Special Agent David


                                           2
Wilson, who was involved in investigating Gracia’s activities, testified that an

informant told him that Gracia had sold the informant between one and one and a

half kilograms of cocaine over the course of the six months before Gracia was

arrested. This was in addition to the 223 grams seized from Gracia on the day of

his arrest. Although Gracia’s counsel argued that the drugs from the prior sales

should not be considered in calculating Gracia’s sentence, Gracia presented no

evidence to counter Special Agent Wilson’s testimony.

      Gracia argues that the district court’s finding was erroneous because Special

Agent Wilson’s testimony was not credible. Although Special Agent Wilson

testified that Gracia had been forthright in cooperating with the government,

Gracia claims that he “apparently ignored Mr. Gracia’s statements that Mr. Gracia

did not distribute” the kilogram of cocaine prior to Gracia’s arrest. Yet at his

sentencing hearing Gracia submitted no evidence that he ever made such a

statement denying the drug amount to Special Agent Wilson and, in fact, never

even argued that he had done so. Because Special Agent Wilson’s testimony was

not internally inconsistent, his testimony regarding the cocaine Gracia distributed

prior to arrest was not, as Gracia suggests, patently incredible. Thus, the district

court was entitled consider Special Agent Wilson’s testimony in conjunction with

the cocaine in Gracia’s possession on the day of his arrest in arriving at a “fair,


                                           3
accurate, and conservative estimate[] of the quantity of drugs attributable to”

Gracia. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). The

district court’s finding was not clearly erroneous.

       Gracia also contends that the district court applied an incorrect burden of

proof. Twice at Gracia’s sentencing, the district court stated that it was required to

find the quantity of drugs attributable to Gracia by the “greater weight of the

evidence.” Facts, such as drug quantity, that enhance a sentence must be proved

by a preponderance. United States v. Singletary, 649 F.3d 1212, 1216-17 (11th

Cir. 2011). Gracia cites no authority for his assertion that there is a difference

between the “greater weight” and “by a preponderance” evidentiary standards

because no such authority exists. Indeed, in other contexts we have treated the

two as equivalent. Lowery v. Alabama Power Co., 483 F.3d 1184, 1208-09 (11th

Cir. 2007); United States v. Ricks, 639 F.2d 1305, 1309 (5th Cir. Unit B 1981).1

       In any event, because Gracia never objected to the district court’s repeated

assertion of the standard it employed to determine the drug quantity, his challenge

may succeed only if he can show the error was plain. He has not done so. See

United States v. LeCroy, 441 F.3d 914, 930-31 (11th Cir. 2006) (explaining that,



       1
          All decisions by a former Unit B panel of the Fifth Circuit are binding in this Circuit.
Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982).

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in the absence of any relevant law, an asserted error cannot be plain).

      AFFIRMED.




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