                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5085


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

O’BENSON SESERE, a/k/a O.B., a/k/a Obenson Sesere,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:06-cr-00041-gec-10)


Argued:   December 7, 2010                 Decided:   February 7, 2011


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Jeb Thomas Terrien, OFFICE OF
THE   UNITED  STATES   ATTORNEY,  Harrisonburg,  Virginia,  for
Appellee. ON BRIEF: Timothy J. Heaphy, United States Attorney,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Appellant O’Benson Sesere seeks relief from his convictions

and sentence in the Western District of Virginia on four drug

offenses involving cocaine base (“crack cocaine” or “crack”).

At the conclusion of a jury trial in Harrisonburg, Sesere was

convicted of conspiracy to distribute cocaine base (21 U.S.C.

§ 846),   plus    three   separate   distribution   offenses   (21   U.S.C.

§ 841(a)).       On appeal, he pursues three contentions of error:

(1) that the court erred in denying judgment of acquittal on one

of the distribution offenses (the “Sufficiency Issue”); (2) that

the court erroneously permitted the prosecutors to bolster the

credibility of two of their witnesses (the “Bolstering Issue”);

and (3) that the court erred in its drug quantity finding at

sentencing (the “Sentencing Issue”).           As explained below, we

reject each of these contentions and affirm.



                                     I.

                                     A.

     On September 6, 2006, Sesere and eleven codefendants were

charged in a multi-count indictment. 1        Specifically, Sesere was

     1
       Because we are reviewing for sufficiency of the evidence,
we must view the evidence in “the light most favorable to the
Government.”   See United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005).   This factual recitation is set forth in that
light.


                                      2
charged with conspiracy to distribute fifty grams or more of

crack cocaine (Count One), plus seven counts of distribution and

possession with intent to distribute (Counts Twenty-One through

Twenty-Seven).             Four     of      the     distribution       charges          were

subsequently dismissed by the United States Attorney, and Sesere

was tried and convicted in August 2009 on the four remaining

offenses,        that    is,    Counts    One,     Twenty-One,       Twenty-Two,        and

Twenty-Four. 2

                                            B.

     The trial evidence reflected that, from 2004 to 2006, the

Northwest Virginia Regional Drug Task Force was involved in an

extensive investigation of crack and powder cocaine distribution

in   the     Winchester,          Virginia        area.       The     focus        of   the

investigation was an area of Winchester known as “the Block,”

which apparently served as an open-air drug market.                         At Sesere’s

trial,     the      prosecution          presented        multiple    witnesses         and

established that Sesere was a street-level crack dealer on the

Block,     and    that    he    also     worked    with    other     drug   dealers      to

provide     security      for     illicit    drug     businesses      and     to    obtain


     2
       On the basis of his four convictions, Sesere faced a
statutory maximum of life plus eighty years in prison.   See 21
U.S.C. §§ 841(b)(1)(A) (Count One:   not less than ten years or
more than life); 841(b)(1)(B) (Count Twenty-Two: not less than
five years or more than forty); 841(b)(1)(C) (Counts Twenty-One
and Twenty-Four: not more than twenty years).



                                             3
substantial quantities of crack for distribution.                           This evidence

provided the proof underlying Sesere’s conspiracy conviction on

Count      One,    and      the      sufficiency      of       that     evidence    is      not

contested.

      Along       with     Count      One,     Sesere      was     convicted       on    three

substantive drug offenses — Counts Twenty-One, Twenty-Two, and

Twenty-Four.            Count Twenty-One was a distribution offense that

stemmed from a “controlled buy” made by the Task Force on the

Block      on     January      11,     2006,       when    a     cooperating       informant

purchased approximately .9 grams of crack from Sesere.                                    Count

Twenty-Two — a possession with intent to distribute offense —

arose from a series of events that occurred the very next day,

January 12, 2006, when the Task Force executed a search warrant

at   the    Winchester         apartment       of    Sesere’s      girlfriend,          Tiffany

Sloane.         From the apartment (hidden under a sofa), the officers

seized     a     pill    bottle      containing      approximately        24.3     grams     of

crack cocaine,           and   Sesere    later       admitted      to    Sloane    that    the

crack in the bottle belonged to him.

      The substantive offense of most significance in this appeal

is Count Twenty-Four, which stemmed from an incident on February

18, 2006, when an undercover officer on the Block paid $50 in

cash to Sesere for a small quantity of an off-white substance.

Immediately        after       this    transaction,            several    other     officers

sought to apprehend Sesere, who fled on foot in an effort to

                                               4
escape.    As Sesere ran from his pursuers, he tried to elude them

by scaling a residential fence in a backyard.                  The pursuing

officers caught up with Sesere, however, and ordered him off the

fence     and   onto   the   ground.       Sesere   complied     with   their

instructions     and   was   apprehended.       A   K-9   unit    thereafter

searched the yard of the residence beyond the fence, and found

an empty cigar tube and four pieces of crack cocaine, weighing

in the aggregate approximately one-third of a gram.                Three of

the four pieces of crack were found on the grass just beyond the

fence, and the fourth was found on an outdoor table.              The pieces

of crack found on the grass were about three to four feet from

the fence, and the table was about the same distance from the

fence.     Task Force Officer Swartz testified that the locations

where the pieces of crack were found, particularly those lying

on the grass, indicated that all four pieces had been recently

thrown over the residential fence that Sesere had attempted to

scale in his escape effort. 3




     3
       Because the substance that Sesere sold the undercover
officer on February 18, 2006, was neither crack cocaine nor any
other controlled substance, Count Twenty-Four was tried as a
possession with intent to distribute offense, on the premise
that Sesere had possession of the pieces of crack found beyond
the fence with the intent to distribute them.   The Sufficiency
Issue relates solely to Count Twenty-Four.



                                       5
                                           C.

      On the Bolstering Issue — the sole appellate contention

that relates to all of Sesere’s convictions — there are two

pertinent     prosecution         witnesses,      Celeste    Joseph     and   Tiffany

Sloane.     Joseph was a drug dealer who had operated on the Block

and Sloane was Sesere’s girlfriend.                Joseph and Sloane were also

convicted codefendants of Sesere, and they had agreed to testify

against him.       An exchange between the prosecutor and Joseph on

direct examination — emphasized by Sesere in this appeal — went

as follows:

      [Prosecutor]: [You have been convicted] of conspiracy
      to distribute 50 grams or more of crack cocaine[?]

      [Joseph]:     Yes.

                                     *      *      *

      Q:   Do you have any other convictions for felonies,
      any offenses punishable by more than a year in jail?

      [Joseph]:     No.

      [Defense Counsel]:          I object . . . .

J.A. 438. 4    After making his objection, Sesere’s lawyer asserted

to   the   court   that     the    prosecutor      was    improperly     questioning

Joseph,     and    argued    that        making    such     inquiries    on    direct

examination constituted “improperly vouching” for the witness.


      4
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.



                                            6
Id. at       438-39.         The   court    overruled         the    objection,          however,

explaining that no improper questioning had occurred because the

prosecutor had simply asked Joseph about his “objective record,”

as opposed to whether he had “ever been in trouble.”                                      Id. at

439.

       A     similar    exchange       occurred        between       the   prosecutor         and

Sloane when she was on direct examination.                           When the prosecutor

asked Sloane if she had ever been convicted of a felony, she

replied “yes.”           J.A. 464.         Sloane then explained that she had

been       convicted    of    a    drug    conspiracy         offense      and     had     served

prison time.           The prosecutor also asked Sloane if she had been

convicted      of   any      other   felonies        or   a   “misdemeanor          for    moral

turpitude; lying, cheating or stealing.”                            Id.     Sloane replied

“no” and Sesere’s lawyer unsuccessfully renewed the objection he

had interposed during Joseph’s testimony.                       Id.

                                                D.

       On    August     19,    2009,      the   jury      returned     a    guilty        verdict

against Sesere on all four offenses.                          Sesere thereafter filed

motions for judgment of acquittal and a new trial, pursuant to

Federal       Rules     of     Criminal         Procedure       29    and        33. 5       More

       5
       Rule 29 provides that, at both the close of the evidence
and after the jury returns its verdict, the court may consider
whether the evidence is sufficient to sustain a conviction.
Rule 33 provides that the court may grant a new trial in the
proper circumstances.


                                                7
specifically,        Sesere     sought       judgment        of    acquittal      on    Count

Twenty-Four,         arguing     that    the           evidence       against     him    was

insufficient as a matter of law.                   By its Memorandum Opinion of

October 9, 2009, the district court denied Sesere’s motions,

explaining that there was sufficient evidence to support all the

convictions.         See United States v. Sesere, No. 5:06-cr-00041,

(W.D. Va. Oct. 9, 2009) (the “Opinion”). 6                        On Count Twenty-Four,

the   court     explained       that,    “[b]ecause           there     was     substantial

evidence for the jury to find Sesere guilty beyond a reasonable

doubt     as    to    Count    Twenty-Four,            the    court     will     deny    the

defendant’s motion.”           Id. at 8. 7

      Sesere’s       presentence     report       (the       “PSR”)    recommended       that

Sesere be attributed a total of 1,132 grams of crack cocaine —

for a base offense level of 34 under the 2008 Guidelines — and

that the court apply an advisory Guidelines range of 168 to 210

months.        Sesere appeared for sentencing on November 12, 2009,

and     his    lawyer    objected       to       the     quantity      of     crack     being


      6
          The Opinion can be found at J.A. 559-66.
      7
        In its Count Twenty-Four sufficiency analysis, the
district court emphasized the testimony of two witnesses.   See
Opinion 7-8.    Officer Swartz established that the person who
attempted to flee over the fence was Sesere and that at least
$400 in cash was recovered from him. Swartz also said that the
table on which the crack was found was no more than three to
four feet from the fence. Officer Spaid observed crack lying on
the ground and on the table.



                                             8
attributed to him in the PSR.                Sesere argued that the only

evidence on drug quantity had been presented at trial by Joseph,

and that the evidence supported the proposition that Sesere had

possessed only ten to fifteen ounces (or approximately 280 to

420 grams) of crack. 8           The prosecutor responded to the drug

quantity objection by asserting that the trial record provided

ample support for the proposition that Sesere was responsible

for the quantity of crack (1,132 grams) attributed to him in the

PSR.       The prosecutor asserted that, on the evidence of several

trial witnesses, including Sloane, Sesere had “a few times” made

profits of over $2000 in a single day, and even up to $5000 on a

really good day.      J.A. 471. 9

       After considering the drug quantity issue and the relevant

evidence, the sentencing court overruled Sesere’s objection and

attributed     to   him   at   least   500   grams   of   crack   cocaine,   the

threshold quantity necessary for a base offense level of 34.                 In



       8
       Pursuant to section 2D1.1(c)(3) of the Guidelines, the
possession of at least 500 grams but less than 1.5 kilograms of
crack warrants a base offense level of 34.    If Sesere had been
attributed a quantity of crack of at least 150 but less than 500
grams, the provisions of section 2D1.1(c)(4) would have applied,
yielding a base offense level of 32. Pursuant to a base offense
level of 32 and a criminal history category of II (as determined
by the PSR), Sesere’s advisory Guidelines range would have been
reduced to 135 to 168 months, rather than 168 to 210 months.
       9
         The trial evidence was that an ounce (28.3 grams) of
crack typically sold on the Block for $900 to $1500.



                                        9
so ruling, the court concluded that Sesere “certainly understood

that the endeavor, the collaboration between the group [Sesere

and his coconspirators], was responsible for at least 500 grams

of crack cocaine.”         J.A. 592.

       Sesere thereafter filed a timely notice of appeal, and we

possess   jurisdiction       pursuant       to   18   U.S.C.    § 3742(a)     and    28

U.S.C. § 1291.



                                        II.

       We review de novo a district court’s denial of a motion for

judgment of acquittal.            See United States v. Alerre, 430 F.3d

681, 693 (4th Cir. 2005).              In our review, “we are obliged to

sustain a guilty verdict if, viewing the evidence in the light

most    favorable     to      the     Government,       it     is     supported      by

‘substantial evidence’” — substantial evidence being that which

a    “reasonable    finder     of    fact    could    accept     as   adequate      and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”         Id.; see also United States v. Harvey, 532

F.3d 326, 333 (4th Cir. 2008) (observing that “[w]e consider

both circumstantial and direct evidence”).                     On the other hand,

we   review   a    trial    court’s    evidentiary      rulings       for   abuse    of

discretion.        See United States v. Delfino, 510 F.3d 468, 470

(4th Cir. 2007).           Finally, factual determinations underlying a

court’s    imposition        of     sentence     must    be     supported      by     a

                                         10
preponderance       of    the   evidence,         and    are    not   to   be    overturned

unless    they     are    clearly      erroneous.              See    United     States    v.

Jeffers, 570 F.3d 557, 570 (4th Cir. 2009).



                                         III.

                                             A.

        On the Sufficiency Issue, Sesere contends that there was

insufficient trial evidence to warrant his § 841(a) conviction

on Count Twenty-Four — in which he attempted to escape from the

pursuing officers by climbing a backyard fence.                             Specifically,

Sesere contends that there was no evidence that the crack found

in the yard beyond the fence was ever in his possession, and

that he was therefore entitled to judgment of acquittal on that

charge.     To the contrary, however, there was ample evidence —

albeit primarily circumstantial — that the crack cocaine found

beyond    the     fence   had   been    in    Sesere’s         possession        during   his

flight from the police officers, and that he had possessed the

crack with the intention of distributing it.                          Officer Swartz and

other     trial     witnesses     explained             how    Sesere      ran    from    the

authorities after engaging in an undercover transaction on the

Block, and how he sought to scale the fence to escape.                               Swartz

also explained how the pieces of crack beyond the fence were

found — three of them on top of the grass about three to four

feet from the fence and the fourth on a nearby table — and that

                                             11
the circumstances indicated that they had been recently thrown

over the fence.       Officer Spaid also observed the pieces of crack

lying on the grass and on the table.

     Viewing the evidence in the light most favorable to the

prosecution — as we must — the jury was entitled to conclude

that Sesere had been in possession of the crack cocaine found

beyond     the   fence,     and    that    he    had    possessed    it   with    the

necessary intent.         As a result, there was sufficient evidence to

support Sesere’s § 841(a) conviction on Count Twenty-Four, and

the district court properly denied Sesere’s motion for judgment

of acquittal.

                                          B.

     Turning to the Bolstering Issue pursued by Sesere, we first

recognize    that     his   trial       lawyer    probably    was    incorrect        in

characterizing the questioning of Joseph and Sloane as “improper

vouching.”       Sesere more appropriately asserts on appeal that the

improper    evidentiary       practice     being       challenged   was   “improper

bolstering.”      The bolstering of a witness has been characterized

as “the practice of offering evidence solely for the purpose of

enhancing    a    witness’s       credibility     before    that    credibility       is

attacked.”       See United States v. Lindemann, 85 F.3d 1232, 1242

(7th Cir. 1996).          Improper vouching, on the other hand, occurs

when a lawyer indicates — either in questioning or in argument

—   his    personal    belief      in   the     credibility    or    honesty     of   a

                                          12
witness.        See United States v. Lewis, 10 F.3d 1086, 1089 (4th

Cir. 1993).          Thus, “improper bolstering” is the more appropriate

term     for    the    evidentiary       challenges     interposed      by   Sesere’s

lawyer at trial.

       In      any    event,    Sesere    faces   an    uphill     battle     on     the

Bolstering Issue — which we review for abuse of discretion only

— primarily because Rule 607 of the Federal Rules of Evidence

gives any party the right to impeach its own witnesses.                              See

Fed. R. Evid. 607 (“The credibility of a witness may be attacked

by   any     party,     including      the    party    calling    the   witness.”).

Consistent with the foregoing, we have specifically recognized

that “[a] party may impeach its own witness [under Rule] 607.”

United States v. Henderson, 717 F.2d 135, 137 (4th Cir. 1983);

see also Util. Control Corp. v. Prince William Constr. Co., 558

F.2d 716, 720 (4th Cir. 1977) (recognizing that “the effect of

Rule 607 is to sweep away the traditional rule that a party may

not impeach his own witness”).                Thus, as Rule 607 provides, and

as the courts have recognized, the questioning challenged by

Sesere was plainly permissible, and the trial court cannot be

said to have abused its discretion in ruling as it did.

                                             C.

       In his final appellate contention — the Sentencing Issue —

Sesere      contends     that    the     sentencing    court     clearly     erred    in

attributing to him a drug quantity of at least 500 grams of

                                             13
crack    cocaine,         thereby          sentencing         him     pursuant        to    section

2D1.1(c)(3) of the Guidelines, which provides for a base offense

level    of   34.         Sesere         maintains       that       the   quantity         of    crack

properly attributable to him was no more than ten to fifteen

ounces (approximately 280 to 420 grams), and that he therefore

should    have      been          sentenced      pursuant        to   section        2D1.1(c)(4),

which directs a base offense level of 32.

      Section 1B1.3(a) of the Guidelines provides that the base

offense level “shall be determined on the basis of” the offense

of    conviction             and        relevant        conduct.           In     making             that

determination, the “[s]entencing judge[] may find facts relevant

to   determining         a       Guidelines      range     by    a    preponderance             of   the

evidence,     so    long          as    that    Guidelines       sentence       is    treated         as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.”                    United States v. Benkahla, 530 F.3d 300,

312 (4th Cir. 2008).                     And we will not overturn such factual

findings unless they are clearly erroneous.                                See United States

v.   Jeffers,       570          F.3d    557,   570      (4th    Cir.     2009).           In    terms

specific to a § 846 conspiracy conviction, the drug quantity

attributable        to       a    defendant      is     the     quantity       involved         in   the

conspiracy     that          was       reasonably       foreseeable       to    the    defendant.

See USSG § 1B1.3(a)(1); United States v. Randall, 171 F.3d 195,

210 (4th Cir. 1999) (explaining that “the district court may

attribute to the defendant the total amount of drugs involved in

                                                   14
the    conspiracy,      provided       the    drug      quantities     were    reasonably

foreseeable to the defendant and are within the scope of the

conspiratorial agreement” (citing United States v. Irvin, 2 F.3d

72, 77 (4th Cir. 1993) (Wilkins, J.)).

       At    sentencing,        the     district        court    found     that      Sesere

“certainly         understood    that        the     endeavor,     the     collaboration

between       the     group     [Sesere       and       his     coconspirators],        was

responsible for at least 500 grams of crack cocaine.”                          J.A. 592.

At trial, the prosecutors presented at least eight witnesses who

testified about Sesere’s drug dealing activities on the Block.

Joseph, for example, confirmed that between January and June of

2006 he had frequently sold Sesere 84 grams of crack per week,

totalling      more     than     280    to     420      grams.       Sloane,      Sesere’s

girlfriend, testified that Sesere had “a few times” made $2000

in a day selling crack, and up to $5000 on a good day.                                J.A.

471.    Finally, Mannot Lusca, a drug dealer on the Block, related

that on two or three occasions Sesere had pooled his money with

other drug dealers to buy “bricks” of cocaine (a brick being

worth       approximately       $14,400        dollars).           Put     simply,      the

sentencing      court’s       finding    that      at   least    500   grams    of    crack

cocaine      was    properly     attributable           to    Sesere     for   sentencing

purposes was not clearly erroneous.




                                              15
                               IV.

    Pursuant   to   the   foregoing,   we   reject   the   appellate

contentions pursued by Sesere and affirm his convictions and

sentence.

                                                           AFFIRMED




                                16
