                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4929


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES FLOYD MCDOUGALD,

                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. (1:08-cr-00389-NCT-2)


Submitted:   March 17, 2011                 Decided:   April 1, 2011


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


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant.      John W. Stone, Jr., Acting
United States Attorney, Michael F. Joseph, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              James       Floyd    McDougald     appeals    the   seventy-month

sentence he received following his guilty plea to conspiracy to

distribute fifty grams or more of cocaine base, in violation of

21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2010) and

21   U.S.C.    §    846    (2006). 1     McDougald    argues   that   the   recent

changes to the statutory provisions and Sentencing Guidelines

relevant to crack cocaine offenses, enacted vis-à-vis the Fair

Sentencing Act of 2010, 2 apply in this case, and thus serve to

reduce his sentencing range.               McDougald asks us to vacate his

sentence      and     remand      this   case   to   the   district   court   for

resentencing pursuant to these amendments.

              However, the Fair Sentencing Act, which reduces the

cocaine/cocaine base disparity by amending the drug quantities

triggering the statutory penalties, is not retroactive and is

only applicable to defendants who commit their offenses after

its effective date.            McDougald’s criminal conduct predated the

effective date of the Act and thus it does not apply.                       Accord


      1
       This sentence, which is well-below the ten-year statutory
mandatory minimum, was the result of McDougald’s qualification
for the “safety valve” provision, codified at 18 U.S.C.
§ 3553(f) (2006), and the district court’s decision to vary
downward from the applicable Guidelines range.
      2
       Pub. L. No. 111-220, 124 Stat. 2372 (2010) (codified in
scattered sections of 21 U.S.C.)



                                           2
United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010); United

States v. Reevey, 631 F.3d 110, 114-15 (3d Cir. 2010); United

States    v.     Brewer,      624    F.3d     900,      909   n.7    (8th    Cir.       2010),

petition for cert. filed, __ U.S.L.W. __ (U.S. Feb. 24, 2011)

(No. 10-9224); United States v. Bell, 624 F.3d 803, 814 (7th

Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th

Cir.    2010),      petition     for    cert.      filed,     __    U.S.L.W.       __    (U.S.

Feb. 15, 2011) (No. 10-9271); United States v. Carradine, 621

F.3d 575, 580 (6th Cir. 2010), petition for cert. filed, __

U.S.L.W. __ (U.S. Feb. 10, 2011) (No. 10-8937).                         Accordingly, we

reject this contention.

               To    the    extent     that      McDougald    appeals        the   district

court’s determination of the drug quantity attributable to him,

we hold the court did not commit any error, let alone clear

error, in reaching this factual conclusion.                          See United States

v. Kellam, 568 F.3d 125, 147 (4th Cir.) (providing standard of

review), cert. denied, 130 S. Ct. 657 (2009).                          The court based

its    finding      on     McDougald’s      own    statement        regarding      the    drug

amounts that he purchased, and the defendant may be the source

of the estimate for the amount of drugs involved.                               See United

States v. Hicks, 948 F.2d 877, 883 (4th Cir. 1991) (holding

defendant’s         statements      made    at    his    arrest      could    be    used    in

calculation of drug amounts at sentencing).



                                              3
              For   the     foregoing   reasons,    we     affirm    McDougald’s

criminal judgment.          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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