                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 12-4653


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERIC GRANT SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
Chief District Judge. (7:10-cr-00068-D-2)


Submitted:   July 30, 2013                 Decided:   August 8, 2013


Before KEENAN, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Josiah J. Corrigan, PERRY, PERRY & PERRY, Kinston, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Eric   Grant     Smith       pled       guilty,      pursuant         to   a   plea

agreement, to one count of conspiracy to possess with intent to

distribute more than fifty kilograms of marijuana, in violation

of   21    U.S.C.      § 846     (2006).              The    district        court    calculated

Smith’s Guidelines sentence under the U.S. Sentencing Guidelines

Manual (“USSG”) (2011) at 240 months’ imprisonment and sentenced

him to 240 months’ imprisonment.                       On appeal, counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that there are no meritorious issues for appeal, but

questioning        whether       the    district            court    reversibly        erred    in

accepting        Smith’s      guilty    plea          and     abused     its    discretion       in

imposing     sentence.          Smith       has       filed    two     pro     se    supplemental

briefs.         The Government declined to file a brief and does not

seek to enforce the appeal waiver in Smith’s plea agreement.

We affirm.

                Because Smith did not move in the district court to

withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.

11 hearing is reviewed for plain error only.                                 United States v.

Martinez, 277 F.3d 517, 524–26 (4th Cir. 2002).                                 To demonstrate

plain error, a defendant must show: (1) there was error; (2) the

error     was    plain;    and    (3)       the   error        affected        his    substantial

rights.         United     States      v.    Olano,         507   U.S.    725,       732   (1993).

In the     guilty      plea    context,       a       defendant      meets      his    burden   to

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establish that a plain error affected his substantial rights by

showing a reasonable probability that he would not have pled

guilty     but     for      the        district       court’s      Rule        11     omissions.

United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).

            Our     review         of    the     transcript        of     the       guilty    plea

hearing     leads        us       to     conclude        that      the        district       court

substantially complied with the mandates of Rule 11 in accepting

Smith’s    guilty      plea       and    that     any    omission        by    court    did    not

affect Smith’s substantial rights.                        Critically, the transcript

reveals    that     the       district      court       ensured      that       the    plea    was

supported    by     an      independent         basis        in   fact,       and    that    Smith

entered the plea knowingly and voluntarily with an understanding

of the consequences.               United States v. DeFusco, 949 F.2d 114,

116, 120 (4th Cir. 1991).                       Accordingly, we discern no plain

error in the district court’s acceptance of Smith’s guilty plea.

            Turning to Smith’s 240-month sentence, we review it

for    reasonableness          “under       a     deferential        abuse-of-discretion

standard.”        Gall v. United States, 552 U.S. 38, 41, 51 (2007).

This     review     entails            appellate        consideration           of    both     the

procedural       and     substantive           reasonableness           of     the     sentence.

Id. at     51.         In     determining            procedural      reasonableness,           we

consider    whether         the    district          court    properly         calculated      the

defendant’s       advisory         Guidelines         range,      gave        the    parties   an

opportunity to argue for an appropriate sentence, considered the

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18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on

clearly erroneous facts, and sufficiently explained the selected

sentence.          Id.     at   49–51.            If    the   sentence         is   free     of

“significant       procedural      error,”         we    review   it     for    substantive

reasonableness,          “tak[ing]     into       account     the      totality      of    the

circumstances.”           Id. at 51.          If the sentence is within the

properly calculated Guidelines range, we apply a presumption on

appeal      that     the        sentence      is         substantively          reasonable.

United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.

2010).      Such a presumption is rebutted only if the defendant

shows “that the sentence is unreasonable when measured against

the   § 3553(a)          factors.”          United       States     v.    Montes-Pineda,

445 F.3d    375,     379    (4th     Cir.    2006)       (internal       quotation        marks

omitted).

             Counsel and Smith both question whether the district

court erred in calculating his total offense level under the

Guidelines.        We conclude after review of the record that the

district court’s calculation of the drug quantity attributable

to Smith is supported by statements from cooperating informants

in    the   presentence          report      and        the   testimony        adduced      at

sentencing that the district court credited.                        We thus discern no

clear error in the court’s calculation of Smith’s base offense

level under USSG § 2D1.1.             See United States v. Kellam, 568 F.3d

125, 147 (4th Cir. 2009) (stating the standard of review, noting

                                              4
that    the       district     court’s     drug    quantity    finding       must     be

supported by a preponderance of the evidence, and concluding

that testimony received at trial and sentencing supported the

court’s finding); United States v. Randall, 171 F.3d 195, 210-11

(4th Cir. 1999) (explaining that a defendant bears the burden of

establishing        that     information      in   the   presentence     report      the

district         court   relied   on     in   calculating     the    relevant       drug

quantity is incorrect).

                 Smith also claims that his plea agreement was breached

by   the    district       court’s   drug     quantity    calculation.        Because

Smith did not raise this argument following the district court’s

calculation of the drug quantity attributable to him, we review

this claim for plain error.               Puckett v. United States, 556 U.S.

129, 134-36 (2009).           We conclude after review of the record that

Smith fails to establish plain error by the district court.                          The

parties’ agreement to recommend to the district court that a

certain quantity of marijuana be used in the determination of

Smith’s base offense level under the Guidelines was not binding

on the court, and Smith does not suggest that the Government

failed in its obligation to recommend at sentencing that the

court      use    the    agreed-upon     quantity    in    calculating       his    base

offense level.           Smith thus fails to establish a plain breach of

the plea agreement.            See United States v. McQueen, 108 F.3d 64,

66   (4th Cir.       1997)    (holding     that,    to   prevail    on   a   claim    of

                                              5
breach of the plea agreement under a plain error standard, the

defendant      must    show       not   only       a    plain    breach       of     the     plea

agreement but also that he was prejudiced by the error).

              Next, counsel and Smith question whether the district

court erred in enhancing his offense level two levels under USSG

§ 2D1.1(b)(1).         Under USSG § 2D1.1(b)(1), a two-level increase

in a defendant’s offense level is warranted “[i]f a dangerous

weapon (including a firearm) was possessed.”                           The enhancement is

proper when the weapon at issue “was possessed in connection

with drug activity that was part of the same course of conduct

or common scheme as the offense of conviction,” United States v.

Manigan,      592     F.3d    621,      628-29          (4th    Cir.     2010)       (internal

quotation      marks    omitted),       even       in    the    absence       of    “proof     of

precisely concurrent acts, for example, gun in hand while in the

act    of    storing    drugs,      drugs      in       hand    while    in     the    act     of

retrieving a gun.”            United States v. Harris, 128 F.3d 850, 852

(4th        Cir.    1997)         (internal            quotation        marks        omitted).

The defendant bears the burden to show that a connection between

his    possession      of     a    firearm     and       his    narcotics          offense    is

“clearly improbable.”             Id. at 852-53.

              We conclude after review of the record that Smith has

not met this burden.               The district court’s application of the

two-level enhancement is supported by the testimony received at

sentencing and statements in the presentence report connecting

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Smith’s     possession      of      the    firearm    to    a    drug     transaction

occurring in the course of the conspiracy, and Smith has not

pointed to evidence suggesting that the connection between the

firearm and the conspiracy offense was “clearly improbable.”

            Counsel and Smith next question whether the district

court erred in enhancing his offense level six levels under USSG

§ 3A1.2(c)(1).           Pursuant     to   USSG   § 3A1.2(c)(1),        a   defendant

qualifies    for   a     six-level     increase      to   his   offense     level   if,

“knowing or having reasonable cause to believe that a person was

a law enforcement officer,” the defendant “or a person for whose

conduct   the   defendant        is   otherwise      accountable”       assaults    the

officer “during the course of the offense or immediate flight

therefrom” in a manner creating “a substantial risk of serious

bodily injury.”          Smith does not challenge the district court’s

finding that a co-conspirator assaulted an officer and engaged

in conduct creating a substantial risk of serious bodily injury

to the police officer attempting to stop a vehicle transporting

funds slated by the conspiracy for the purchase of marijuana,

and, after review of the record, we conclude that the district

court did not clearly err in finding this conduct was reasonably

foreseeable to Smith.            See United States v. Harrison, 272 F.3d

220, 223 (4th Cir. 2001) (stating standard of review and noting

that “a defendant who undertakes a joint criminal activity is

accountable,       for     sentencing       purposes,      for    the       reasonably

                                            7
foreseeable conduct of the others involved in furtherance of the

jointly undertaken criminal activity”).

            Counsel and Smith also question whether the district

court erred in enhancing his offense level four levels under

USSG § 3B1.1(a).          Section 3B1.1(a) of the Guidelines directs a

district    court    to     enhance       a    defendant’s        offense      level    four

levels   “[i]f    the     defendant       was      an   organizer      or    leader     of   a

criminal activity that involved five or more participants or was

otherwise extensive.”            In assessing whether a defendant played

an   aggravating     role      in   the       offense       of   conviction,     “the    key

inquiry is whether the defendant’s role was that of an organizer

or leader of people, as opposed to that of a manager over the

property,   assets,       or   activities          of   a    criminal       organization.”

United   States     v.    Llamas,     599      F.3d     381,     390   (4th    Cir.    2010)

(internal quotation marks omitted).

            The     evidence        adduced        at    sentencing         supports     the

conclusions       that     the      conspiracy          involved        five     or     more

participants and that Smith exercised an organizational role in

it by arranging for the conspiracy to purchase drugs from a

source, directing members’ purchases from that source, paying

for expenses of purchasing trips, and controlling the flow of

currency from the conspiracy to the source.                         We thus discern no

clear error in the district court’s finding that Smith was an

organizer or leader of the conspiracy’s participants, rendering

                                               8
the four-level enhancement under USSG § 3B1.1(a) appropriate.

See United States v. Jones, 356 F.3d 529, 538 (4th Cir. 2004)

(affirming application of four-level enhancement for leadership

role where defendant recruited dealers, controlled allocation of

drugs    to   dealers,     determined    how     profits    were   divided,    and

handled the logistics and arrangements for the transactions);

United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997)

(affirming application of enhancement where defendant “directed

the activities of other members of the drug ring and facilitated

the criminal enterprise by renting apartments, acquiring pagers,

hiring a lawyer for a codefendant, and paying for the bond of

another codefendant”).

              In    addition   to    correctly   calculating       Smith’s    total

offense level, the district court also correctly calculated his

criminal      history     category,    correctly   calculated       his   advisory

Guidelines         sentence,   and    heard    argument     from    counsel    and

allocution from Smith.          The court explained that the Guidelines

sentence of 240 months’ imprisonment was warranted in light of

the nature and circumstances of Smith’s offense, his history and

characteristics, and the need for the sentence to reflect the

seriousness of his offense, to promote respect for the law, to

afford adequate deterrence, and to protect the public.                    Neither

counsel nor Smith offers any grounds to rebut the presumption on

appeal    that      his   within-Guidelines      sentence    is    substantively

                                         9
reasonable.      Accordingly, we conclude that the district court

did not abuse its discretion in sentencing Smith.

            Finally, in accordance with Anders, we have reviewed

the remainder of the record in this case and have found no

meritorious issues for appeal.           We therefore affirm the district

court’s    judgment.      This   Court    requires      that    counsel   inform

Smith, in writing, of the right to petition the Supreme Court of

the United States for further review.             If Smith requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this Court for

leave to withdraw from representation.               Counsel’s motion must

state that a copy thereof was served on Smith.

            We dispense with oral argument because the facts and

legal    contentions     are   adequately   presented      in    the    materials

before    this   Court   and   argument   would   not    aid    the    decisional

process.



                                                                         AFFIRMED




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