                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4369


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TAMAURIUS LEE ALLEN,

                Defendant – Appellant.



                               No. 09-4773


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS AVERY ALLEN, JR.,

                Defendant – Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Winston-Salem.       N. Carlton
Tilley, Jr., Senior District Judge. (1:07-cr-00409-NCT-1; 1:07-
cr-00409-NCT-2)


Submitted:   October 6, 2010             Decided:   December 2, 2010


Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


J. Clark Fischer, RANDOLPH AND FISCHER, ATTORNEYS, Winston-
Salem, North Carolina; Brian M. Aus, Durham, North Carolina, for
Appellants.   Anna Mills Wagoner, United States Attorney, Graham
T. Green, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Tamaurius Lee Allen and Thomas Avery Allen, Jr. were

convicted after a jury trial of various drug-related offenses

and     sentenced      to    150     months’         imprisonment       and      360     months’

imprisonment,         respectively.            On     appeal,     Tamaurius         challenges

only his convictions while Thomas challenges his convictions and

sentence.       We affirm.



                                               I.

            Tamaurius was convicted of distribution of 26.1 grams

of    cocaine    base       (Count    One);         distribution      of     38.5      grams   of

cocaine     base      (Count       Two);       and     possession       with        intent     to

distribute      40.1       grams     of    cocaine      base    (Count       Four);      all   in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006).                                    Thomas

was   convicted       of    distribution        of     63.4     grams      of   cocaine      base

(Count Five); and distribution of 61.0 grams of cocaine (Count

Six);    both    in    violation          of   21    U.S.C.     § 841(a)(1),         (b)(1)(B)

(2006).     Both brothers were convicted of distribution of 40.4

grams of cocaine base and aiding and abetting (Count Three), in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2

(2006).     Prior to trial, the Government filed informations of

prior    felony       drug    convictions            pursuant    to     21      U.S.C.    § 851

(2006), as to each defendant.



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            On appeal, Tamaurius contends that during the trial

the district court incorrectly admitted evidence that, prior to

the first drug transaction, a detective conducted surveillance

of the area and observed drug activity.                 Tamaurius contends that

this evidence was inadmissible under Federal Rules of Evidence

401 and 403.       We review the district court’s evidentiary rulings

for abuse of discretion.            United States v. Delfino, 510 F.3d

468, 470 (4th Cir. 2007), and we will not “‘vacate a conviction

unless we find that the district court judge acted arbitrarily

or   irrationally’     in    admitting        evidence.”     United    States   v.

Benkahla,    530   F.3d     300,   309   (4th    Cir.   2008)   (quoting    United

States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993)).

            Rule    401     provides     for    the   admission   of   “evidence

having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”                      Fed. R.

Evid. 401.     “[R]elevance typically presents a low barrier to

admissibility.”       United States v. Leftenant, 341 F.3d 338, 346

(4th Cir. 2003).          Thus, evidence is relevant if it is “worth

consideration by the jury” or has a “plus value.”                 United States

v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (internal quotation

marks omitted).

            Rule 403 provides a “more limited bar to otherwise

admissible evidence.”          United States v. Basham, 561 F.3d 302,

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326 (4th Cir. 2009), cert. denied, 130 S. Ct. 3353 (2010).                                 The

rule    “only       requires      suppression         of   evidence    that    results      in

unfair    prejudice          —    prejudice      that       damages    an   opponent       for

reasons other than its probative value, for instance, an appeal

to emotion, and only when that unfair prejudice substantially

outweighs the probative value of the evidence.”                             United States

v.     Mohr,    318      F.3d      613,     619-20     (4th    Cir.    2003)    (internal

quotation marks omitted).

               The district court did not abuse its discretion in

admitting the challenged evidence.                         First, the evidence, which

was essentially background in nature and served to explain the

detective’s further surveillance and undercover operation, was

clearly relevant.                See Fed. R. Evid. 401 advisory committee’s

note (“Evidence which is essentially background in nature can

scarcely       be    said    to    involve      the    disputed   matter,      yet    it    is

universally offered and admitted as an aid to understanding”).

               Moreover,          the     district     court     did    not    abuse       its

discretion          in   admitting        the   evidence      under    Rule    403.        The

testimony did not contain any allegations that the detective saw

Tamaurius or Thomas selling drugs prior to the beginning of the

undercover operation.               Accordingly, it cannot be said that any

risk     of         unfair       prejudice       substantially          outweighed         the

testimony’s probative value.



                                                5
             Thomas        first       challenges         the     sufficiency        of     the

evidence on Counts Five and Six.                          We will sustain a guilty

verdict if, viewing the evidence in the light most favorable to

the    Government,         the     verdict         is     supported        by     substantial

evidence.     United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc).           “[S]ubstantial evidence” is “evidence that 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. at 862.            In our review, we “consider

circumstantial        as    well       as    direct       evidence,        and     allow    the

government the benefit of all reasonable inferences from the

facts proven to those sought to be established,”                                United States

v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), and we assume

that   the    fact     finder          resolved         all     contradictions        in    the

testimony in favor of the Government.                         United States v. Brooks,

524 F.3d 549, 563 (4th Cir. 2008).                       “[A]s a general proposition,

circumstantial evidence may be sufficient to support a guilty

verdict     even   though         it    does       not     exclude      every      reasonable

hypothesis     consistent          with      innocence.”             United        States    v.

Osborne,     514   F.3d     377,       387   (4th        Cir.   2008)    (alteration        and

quotation marks omitted).                Having reviewed the record in light

of this standard, we conclude that the verdicts on Counts Five

and Six were supported by adequate evidence.



                                               6
              Thomas next argues that the district court committed

two    reversible      errors      during    his       sentencing    proceeding.          In

reviewing      any     sentence,       “whether         inside,     just    outside,      or

significantly outside the Guidelines range,” this court applies

a “deferential abuse-of-discretion standard.”                             Gall v. United

States, 552 U.S. 38, 41 (2007).                        This court first “ensure[s]

that    the   district        court    committed        no    significant        procedural

error.”       Id. at 51.           “If, and only if, we find the sentence

procedurally         reasonable       can        we    ‘consider     the        substantive

reasonableness         of    the     sentence         imposed     under    an     abuse-of-

discretion standard.’”               United States v. Carter, 564 F.3d 325,

328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).

              Procedural       errors      may    include       “failing    to   calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines      as     mandatory,       failing        to    consider      the    § 3553(a)

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence--including

an explanation for any deviation from the Guidelines range.”

Gall, 552 U.S. at 51.

              Thomas        argues    that       the    district      court       committed

procedural error by failing to recognize its ability to vary his

sentence      downward       based    on    his       diminished    capacity       and   the

crack-to-powder cocaine sentencing disparity.                        We conclude that

the district court did not commit reversible procedural error in

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either    respect.         First,    the    district      court   engaged       Thomas’s

counsel at length before ultimately concluding no variance was

warranted based on Thomas’s alleged diminished capacity.                             The

district court began its statement of reasons by noting that it

had    the     freedom     to     vary     from    the    Guidelines      range,    but

recognized that it must have a reason to vary.                           The district

court noted that mental capacity was a factor under § 3553(a)

but that, in this case, it was “not in a position” to grant a

downward variance because, although Thomas had a low IQ score

from his youth, he also admitted to extensive drug use during

his    formative    years.         The   district     court    further    noted     that

Thomas, when he was in prison and not using drugs, was able to

get his GED, which suggested that “when you are not using drugs,

you can do pretty good stuff.”                    This thoughtful discussion is

exactly      what   Gall    requires,       and     the   court   did     not    commit

procedural       error     in    denying     a    downward     variance     based    on

Thomas’s diminished capacity.

               Likewise, the district court did not commit procedural

error in refusing to vary from the crack/powder ratio applicable

to    Thomas.       In   this     case,     the    district    court     specifically

recognized its authority to vary from the 20:1 ratio in Thomas’s

case     but     simply         declined     to     exercise      that     authority.

Accordingly, the district court did not commit procedural error.

See United States v. Caldwell, 585 F.3d 1347, 1355 (10th Cir.

                                            8
2009)    (upholding     district   court’s      decision   not    to   vary    from

crack/powder ratio because “[n]othing in Kimbrough [v. United

States,    552   U.S.   85   (2007)]   mandates     that   a     district     court

reduce    a    defendant’s    sentence     in     order    to    eliminate     the

crack/powder sentencing disparities”).

              For the foregoing reasons, we affirm the convictions

and sentences of Tamaurius Lee Allen and Thomas Avery Allen, Jr.

We grant Thomas’s motion to file a pro se supplemental brief.

We have considered the arguments asserted in the pro se brief

and conclude that they are without merit.             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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