                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-4582


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

CARL DADAILLE,

                 Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:07-cr-00039-NCT-2)


Submitted:   March 22, 2010                 Decided:   April 13, 2010


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant.      Anna Mills, Wagoner, United
States Attorney, L. Patrick Auld, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A     jury     convicted        Carl       Dadaille      of     one    count    of

conspiracy      to   commit      offenses        against      the    United       States,   in

violation of 18 U.S.C. § 371 (2006), by obstructing justice, by

influencing        the     testimony        of     a     witness       in    an     official

proceeding, and by suborning perjury.                         The jury also convicted

Dadaille of separate substantive counts of obstructing justice

in violation of 18 U.S.C. § 1503(a) (2006), and tampering with a

witness    in     violation      of   18    U.S.C.       § 1512      (2006).        The    jury

acquitted       Dadaille    of    two      objects       of   the    conspiracy      charge,

uttering    counterfeit          securities        and    using      counterfeit      access

devices.

             On    appeal,    Dadaille        contends        that    (1)    the    district

court violated his Sixth Amendment right to confront witnesses

when it admitted, over his objection, documentary evidence of

the purchase of travelers checks through a witness who had no

involvement with the transaction; (2) the district court erred

in improperly admitting character evidence; and (3) the district

court violated his Sixth Amendment right to trial by jury by

considering evidence of acquitted conduct in sentencing him.                                We

affirm.




                                              2
                               I.     Evidentiary Issues

            Generally, we review decisions to admit evidence for

abuse of discretion.                United States v. Forest, 429 F.3d 73, 79

(4th Cir. 2005).          Under the abuse of discretion standard, we may

not    substitute    our       judgment      for     that    of   the   district       court;

rather, we must determine whether the district court’s exercise

of discretion, considering the law and facts, was arbitrary or

capricious.      United States v. Mason, 52 F.3d 1286, 1289 (4th

Cir.    1995).      However,         where    evidentiary         issues      relate   to   an

asserted    violation          of    the     Sixth    Amendment,        the     appropriate

standard of review is de novo.                     United States v. Robinson, 389

F.3d 582, 592 (6th Cir. 2004).                     Whether reviewed only for abuse

of    discretion     or    de       novo,     any    error    in     the      admission     or

exclusion of evidence is subject to the harmless error test.

See Delaware v. Van Arsdall, 475 U.S. 673, 680-84 (1983); United

States v. Pendergraph, 388 F.3d 109, 112 (4th Cir. 2004).                                    We

review for plain error issues that Dadaille failed to preserve

in the district court.              See Fed. R. Crim. P. 52(b).



                           A.        Confrontation Clause

            Dadaille claims that the district court violated his

Sixth    Amendment    right          to   confrontation       when      it    admitted      the

business    records       of    American       Express      through      an    employee      at

American Express who had no involvement with the transaction.

                                               3
            The Confrontation Clause of the Sixth Amendment bars

“admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.”

Crawford    v.    Washington,           541    U.S.   36,     53-54    (2004).        For   a

statement to be excludable under the Confrontation Clause, it

must be “testimonial,” United States v. Udeozor, 515 F.3d 260,

268 (4th Cir. 2008), and offered for the truth of the matter

asserted, Crawford, 541 U.S. at 59-60 n.9 (the Confrontation

Clause    does    not    bar      the    use    of    “testimonial       statements     for

purposes     other      than      establishing         the    truth      of   the     matter

asserted”).

            Our review of the record leads us to conclude that the

purchase    agreement      documents,           as    business      records,     were   not

hearsay and were not testimonial.                       Crawford, 541 U.S. at 56;

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539 (2009).

Therefore,    the    district       court       did   not     err   in   allowing     their

admission through a records custodian who was not involved in

the transaction that led to their creation.



                             B.     Character Evidence

            Dadaille next argues that the district court erred in

improperly       admitting     character           evidence    under     Fed.    R.    Evid.

404(b).

                                               4
            First,   Dadaille     argues       that   the     Government’s      cross-

examination    of      him   elicited         improper      character       evidence.

However, this complaint overlooks the fact that “by taking the

stand,   his   credibility       became       subject    to    attack      on   cross-

examination.       Matters affecting the credibility of the witness

are always open to cross examination.”                  United States v. Zandi,

769 F.2d    229,    236   (4th   Cir.   1985)       (internal     quotation      marks

omitted).

            We conclude that the Government’s cross-examination of

Dadaille was related to matters affecting his credibility, and

its scope was properly within the subject matter that Dadaille

himself raised on direct examination.                 See Fed. R. Evid. 611(b)

(“Cross-examination should be limited to the subject matter of

the direct examination and matters affecting the credibility of

the witness.”).        Thus, the district court did not abuse its

discretion in overruling the objections that Dadaille made to

the Government’s questions.          For the questions to which Dadaille

made no objection, we find no plain error.

            Further,      Dadaille   has      not   shown     that   the    travelers

checks   purchase    agreement       constituted        character    evidence,      or

that relevant evidence provided by a civil court document was

unfairly prejudicial.        Thus, we conclude the district court did

not abuse its discretion in admitting the contested evidence.



                                          5
                                        II.    Sentence

               We    review    a    sentence         for    reasonableness,           using    an

abuse of discretion standard of review.                          Gall v. United States,

552 U.S. 38, 51 (2007).                 The first step in this review requires

the    court     to    ensure       that      the     district      court       committed      no

significant procedural error.                   United States v. Evans, 526 F.3d

155,   161     (4th     Cir.),      cert.      denied,       129    S.    Ct.    476    (2008).

Procedural          errors     include           “(improperly            calculating)         the

Guidelines      range.”         Gall,      552       U.S.   at     51.     The       Court   then

considers the substantive reasonableness of the sentence, taking

into account the totality of the circumstances.                            Id.       A sentence

within the properly calculated Guideline range is presumptively

reasonable.          United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007).

               Our    review       of    the     record       convinces         us    that    the

district court did not violate Dadaille’s Sixth Amendment right

to trial by jury in sentencing him.                         The district court did not

sentence       Dadaille       based      on    its      consideration           of    acquitted

conduct.       It properly calculated Dadaille’s offense level under

U.S. Sentencing Guidelines Manual (“USSG”) § 2X3.1 (2008) using

a   cross-reference          from    USSG      §§    2J1.2(c)(1),         2J1.3(c)(1),        the

Guideline for the obstruction and perjury offenses for which

Dadaille was convicted.                 Under USSG § 2X3.1, the district court

incorporated the underlying offense level for the counterfeit

                                                 6
offenses    because        Dadaille       was       convicted     of    obstructing            the

investigation into those offenses.

            Further,       a     sentencing         court   may    consider         acquitted

conduct    in    sentencing,          even   after     of   the   decision          in   United

States v. Booker, 543 U.S. 220 (2005), as long as the conduct is

established by a preponderance of the evidence.                               United States

v. Perry, 560 F.3d 246, 258-59 (4th Cir.), cert. denied, 130 S.

Ct. 177 (2009).            Here, the Government established Dadaille’s

involvement in the counterfeit travelers check and counterfeit

credit card scheme by a preponderance of the evidence.                                         We

therefore       conclude    that       the   district       court       did       not    err    in

sentencing Dadaille.

            Therefore,           we     affirm        Dadaille’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    argument          would   not   aid       the    decisional

process.

                                                                                        AFFIRMED




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