                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4084


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BRANDON ANTOWINE BARNETTE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:12-cr-00020-FDW-1)


Submitted:   August 14, 2013                 Decided:   August 27, 2013


Before DAVIS, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Roderick M. Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC,
Charlotte, North Carolina, for Appellant.      Anne M. Tompkins,
United States Attorney, Melissa L. Rikard, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Brandon                 Antowine             Barnette                 appeals                his

thirty-seven-month            sentence             imposed      following           his       guilty       plea

pursuant to a plea agreement to conspiracy to distribute and

possess    with       intent           to    distribute          cocaine,       in           violation      of

21 U.S.C.A.          § 841(b)(1)(A)                (West        2006      &    Supp.           2013)        and

21 U.S.C. § 846 (2006).                     We affirm.

               The presentence report (“PSR”) calculated Barnette’s

Guidelines      range        under          the    U.S.     Sentencing          Guidelines            Manual

(“USSG”)        (2012)            at        thirty-seven             to       forty-six              months’

imprisonment.            Barnette             moved       for    a     downward              departure       or

variance       from    the        Guidelines          range,         arguing        that        he    should

receive a ten-level reduction to his base offense level under

USSG § 2D1.1          because          it    was     increased         from     level          sixteen      to

level    twenty-six          based          entirely       on     the      cocaine            quantity       he

reported       to     law    enforcement              officials           during         a    post-arrest

interview.          The Government opposed Barnette’s request, arguing

that    the     PSR         had        properly       calculated              the        drug    quantity

attributable to him.                   As part of its opposition, the Government

also    made    an     oral       evidentiary             proffer—based             on       investigative

information         from      the           case    agent—establishing                   that        one    of

Barnette’s          co-conspirators                 had         informed        law            enforcement

officials of Barnette’s involvement in the conspiracy prior to

Barnette’s arrest.                The district court accepted the Government’s

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proffer     and      adopted        the       PSR’s     calculation           of   Barnette’s

Guidelines         range.          On     appeal,      Barnette         argues       that   the

Government committed reversible misconduct by failing to file a

written    response         to   his     motion       for   a    downward      departure     or

variance and by opposing the motion with the oral evidentiary

proffer.

              To succeed on a claim of prosecutorial misconduct, a

defendant must prove that the prosecution engaged in improper

conduct and that such conduct prejudiced his substantial rights

so as to deny him a fair proceeding.                            United States v. Allen,

491 F.3d 178, 191 (4th Cir. 2007).                          Because Barnette did not

raise   his    claim    of       prosecutorial         misconduct        in    the    district

court, we review it for plain error, affirming unless an error

was made, the error was plain, and the error affected Barnette’s

substantial rights.              United States v. Alerre, 430 F.3d 681, 689

(4th Cir. 2005).

              We    conclude        after      review       of    the    record       and   the

parties’      briefs        that        the    Government         did    not       engage    in

misconduct.         Evidentiary proffers may be used in the calculation

of the drug quantity attributable to a defendant for sentencing

purposes, accord United States v. Young, 609 F.3d 348, 358-59

(4th    Cir.        2010)        (vacating          sentence       and    remanding         for

resentencing where the district court failed to recognize its

authority      to    consider       the       drug    quantity      established        by   the

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Government’s evidentiary proffer introduced at sentencing), and

the plea agreement in this case provided that the parties could

argue    their   respective   positions   regarding   departures   or

variances from the Guidelines range.      Barnette does not point to

anything in the record that would support the conclusion that

the Government was required to respond to his motion in writing.

The plea agreement also permitted the Government to inform the

district court of all facts pertinent to the sentencing process,

and Barnette does not contend that the oral proffer was not

pertinent to his sentencing or point to anything in the record

establishing that the proffer was inaccurate. *

           Barnette fails to establish that any plain error was

committed in the manner in which the Government responded to his

motion for a downward departure or variance.          Accordingly, we

affirm the district court’s judgment.        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




     *
       Although Barnette summarily asserts that the case agent
made “blatant misrepresentations,” he does not point to anything
in the record supporting this assertion.


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