                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4813


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANILO GARCIA, a/k/a Donny, a/k/a Darreo,

                Defendant - Appellant.



                              No. 15-4818


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROY LEE CLAY, a/k/a Junior,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.   Catherine C. Blake, Chief District
Judge. (1:11-cr-00569-CCB-1; 1:11-cr-00569-CCB-3)


Submitted:   November 29, 2016              Decided:   December 15, 2016


Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.


Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia,
Maryland; Christopher C. Nieto, BROWN & NIETO, LLC, Baltimore,
Maryland, for Appellants.     Rod J. Rosenstein, United States
Attorney, Ayn B. Ducao, Christopher J. Romano, Assistant United
States Attorneys, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      A     jury    convicted        Danilo       Garcia       and     Roy     Lee    Clay

(collectively, “Appellants”) for their involvement in a heroin

trafficking conspiracy.              On appeal, Appellants claim that two

evidentiary errors require a new trial.                        Clay also challenges

the   sufficiency      of   the    evidence       and    his       360-month    sentence.

Finding no error, we affirm.

                                         I.

      We review a district court’s evidentiary rulings for abuse

of discretion.       United States v. Faulls, 821 F.3d 502, 508 (4th

Cir. 2016).        Reversal is warranted only if, in consideration of

the   law     and      facts    of     the       case,       the     district       court’s

determination       “was    arbitrary    or       irrational.”          Id.     (internal

quotation marks omitted).

      Appellants first contend that the district court erred in

allowing     Special    Agent     Todd   Edwards        to    testify    as    an    expert

witness on coded language used during intercepted phone calls,

arguing that the Government’s expert disclosure was deficient

and thus Appellants were prejudiced in their ability to conduct

an adequate cross-examination.                Rule 16(a)(1)(G), Fed. R. Crim.

P., requires the Government, when requested, to “give to the

defendant a written summary of any [expert] testimony that the

government intends to use . . . during its case-in-chief at



                                             3
trial.”          The disclosure “must describe the witness’s opinions,

the    bases      and     reasons          for    those    opinions,          and    the    witness’s

qualifications.”                  Id.    “Rule 16(a)(1)(G) is intended to minimize

surprise that often results from unexpected expert testimony,

and to provide the opponent with a fair opportunity to test the

merit       of     the        expert’s           testimony          through         focused    cross-

examination.”            United States v. Garcia-Lagunas, 835F.3d 479, 494

(4th    Cir.       2016)           (alteration          and     internal           quotation    marks

omitted).

       We    conclude             that     the    district          court    did     not   abuse   its

discretion         in    allowing           Edwards       to    testify.            The    Government

submitted         its        initial       disclosure          well      before      the    scheduled

commencement            of     trial,       and    supplemented              this    disclosure     by

identifying         specific             phone    calls        about        which    Edwards    would

testify.          Moreover, although the parties appeared before the

district court for an evidentiary hearing on an unrelated matter

before trial, Appellants failed to challenge the sufficiency of

the disclosure until the night before Edwards was scheduled to

testify.         The district court’s exercise of discretion under the

circumstances was wholly permissible.

       Next, Appellants contend that the district court erred in

admitting         against           Clay     portions          of    a      cooperating       witness’

testimony         from        a    previous       trial.             Clay     contends      that   the



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Government’s efforts to locate the witness prior to trial were

insufficient         and    that       his    Confrontation               Clause       rights      were

violated       because      he   was     unable          to    cross-examine           the    witness

about      events        that      occurred             after        the        previous        trial.

Separately,          Garcia      contends          that       his     rights         were    violated

because        the    witness’         testimony          improperly            implicated         him,

notwithstanding            the    district             court’s       instruction            that     the

evidence could be considered against Clay only.

      We       review      de     novo        an       alleged        Confrontation             Clause

violation.       United States v. Reed, 780 F.3d 260, 269 (4th Cir.),

cert.      denied,       136     S.     Ct.        112,        113,       167     (2015).            The

Confrontation           Clause        “bars        the        admission         of     ‘testimonial

statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.’”                            United States v. Dargan,

738     F.3d     643,      650    (4th        Cir.       2013)        (quoting        Crawford       v.

Washington, 541 U.S. 36, 53-54 (2004)).                                Testimony at a prior

trial    qualifies         as    testimonial            evidence.           United          States    v.

Alvarado, 816 F.3d 242, 251 (4th Cir.), cert. denied, __ S. Ct.

__, 2016 WL 3655209 (U.S. Nov. 28, 2016).                                 “[T]he Confrontation

Clause      guarantees           an      opportunity                for     effective           cross-

examination, not cross-examination that is effective in whatever




                                                   5
way, and to whatever extent, the defense might wish.”                Delaware

v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).

      Rule 804(b)(1), Fed. R. Evid., allows the admission into

evidence of a hearsay statement from an unavailable witness who

previously   testified   at   a    trial,   that    is   offered    against    a

defendant who had an opportunity to challenge the declarant on

cross-examination.       A    declarant      is     unavailable      if   “the

statement’s proponent has not been able, by process or other

reasonable means, to procure the declarant’s attendance.”                 Fed.

R.   Evid.   804(a)(5)(A).        For   purposes    of   the   Confrontation

Clause,   “[t]he   ultimate   question      is    whether    the   witness    is

unavailable despite good-faith efforts undertaken prior to trial

to locate and present that witness.”             Ohio v. Roberts, 448 U.S.

56, 74 (1980), abrogated on other grounds by Crawford, 541 U.S.

at 36.

      We conclude that the district court did not err in allowing

the witness’ prior testimony into evidence.                 The witness left

the country after his release from a period of incarceration,

essentially absconding from a period of community supervision.

Upon learning that the witness would be needed for a retrial,

the Government immediately took steps to locate the witness,

requesting help from both British and French authorities but to

no avail.     Officials also verified that the witness had not



                                        6
reentered the United States using the passport that he used to

depart.        Clay’s    previous       counsel      had    had    an    opportunity        to

conduct cross-examination, and had asked several questions to

attempt to undermine the witness’ credibility before the prior

jury.     Moreover, in accordance with the parties’ agreement, the

district court informed the jury about the witness absconding

from     probation,      thus     serving      to    amplify       counsel’s      previous

cross-examination.            Additionally, the witness’ testimony did not

implicate Garcia by name, and the district court appropriately

instructed      the    jury     that    it   could    not     consider     the    witness’

testimony against Garcia.               See United States v. Min, 704 F.3d

314, 321 & n.5 (4th Cir. 2013) (noting, in affirming district

court’s admission of redacted confession, that “confessions do

not become facially incriminatory when the government introduces

evidence       at     trial     that     links       the      confession         to    other

defendants”); United States v. Chong Lam, 677 F.3d 190, 204 (4th

Cir.      2012)       (“[J]uries        are        presumed        to    follow        their

instructions.”         (internal quotation marks omitted)).

                                             II.

        Clay   next     challenges       the       sufficiency      of    the     evidence

against him.          In assessing the sufficiency of the evidence, we

determine whether there is substantial evidence to support the

conviction      when    viewed     in    the       light    most    favorable         to   the



                                              7
Government.         United States v. Engle, 676 F.3d 405, 419 (4th Cir.

2012).       “Substantial         evidence      is       evidence     that     a    reasonable

finder     of     fact    could    accept       as   adequate         and    sufficient          to

support a conclusion of guilt beyond a reasonable doubt.”                                       Id.

Thus,    “reversal        for    insufficiency           must    be   confined          to    cases

where      the    prosecution’s         failure      is     clear.”          Id.     (internal

quotation marks omitted).

      “To        prove    conspiracy,      the       government         must       demonstrate

beyond a reasonable doubt (1) an agreement between two or more

persons to engage in conduct that violates a federal drug law,

(2) the defendant’s knowledge of the conspiracy, and (3) the

defendant’s         knowing       and     voluntary             participation           in      the

conspiracy.”         United States v. Gomez-Jimenez, 750 F.3d 370, 378

(4th Cir. 2014).            “Once the Government proves a conspiracy, the

evidence     need        only   establish       a    slight       connection        between       a

defendant and the conspiracy to support conviction.”                                         United

States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).                                A defendant

may   be    convicted       of    conspiracy         without       knowing        all    of     its

details and even if he plays only a minor role, so long as he

enters     the     conspiracy      understanding           that    it   is     unlawful         and

willfully joins in the plan at least once.                                  Id. at 367-68.

“Circumstantial           evidence      alone       is    sufficient         to    support        a




                                             8
conviction        for    conspiracy.”         Gomez-Jimenez,           750    F.3d    at    378

(internal quotation marks omitted).

       We     conclude         that   sufficient       evidence         supports          Clay’s

conviction.         The Government introduced phone calls between Clay

and    Garcia,       which       Edwards      interpreted        to     refer        to    drug

transactions.            A cooperating witness placed Clay in New York

with    Garcia      to    discuss     bad   heroin     that      Clay    had       purchased.

Garcia also informed the cooperating witness that he supplied

two people in Baltimore, one of whom, based on the other trial

evidence, was Clay.               Additionally, while Clay was not tied to

all    of   the     drug       transactions       proven   at    trial,       he    was     seen

operating in a similar manner to his coconspirators.                               Finally, a

jailhouse informant’s testimony provided additional support for

the    jury    to   find       Clay   responsible      for      over    one    kilogram      of

heroin.       Thus, we conclude that there was sufficient evidence to

support the jury’s verdict.

                                            III.

       Finally, Clay contends that his sentence is unreasonable

because       the   district       court    failed    to     adequately        explain      his

sentence and should have rejected the application of the career

offender guideline in this instance.                       We review a defendant’s

sentence       “under      a    deferential       abuse-of-discretion              standard.”

Gall v. United States, 552 U.S. 38, 41 (2007).                                  Under this



                                              9
standard,     a     sentence      is    reviewed          for        both        procedural         and

substantive       reasonableness.              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 18 U.S.C. § 3553(a) (2012)

factors, and sufficiently explained the selected sentence.                                          Id.

at 49-51.

      If a sentence is free of “significant procedural error,”

then we review it for substantive reasonableness, “tak[ing] into

account the totality of the circumstances.”                                 Id. at 51.             “Any

sentence     that     is     within      or        below        a     properly         calculated

Guidelines range is presumptively reasonable.”                                  United States v.

Louthian,     756     F.3d       295,   306        (4th        Cir.        2014).           “Such     a

presumption can only be rebutted by showing that the sentence is

unreasonable       when     measured      against          the        18 U.S.C.             § 3553(a)

factors.”    Id.

      In    evaluating       a     sentencing         court’s              explanation         of    a

selected sentence, we consistently have held that, although the

district court must consider the statutory factors and explain

the     sentence,     “it     need      not    robotically                 tick      through        the

§ 3553(a) factors.”          United States v. Helton, 782 F.3d 148, 153

(4th Cir. 2015) (internal quotation marks omitted).                                   At the same



                                              10
time, the district court “must make an individualized assessment

based on the facts presented.”                  Gall, 552 U.S. at 50.                 While the

“individualized          assessment      need       not    be    elaborate       or      lengthy,

. . . it must provide a rationale tailored to the particular

case      at    hand    and    adequate        to     permit       meaningful         appellate

review.”        United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) (internal quotation marks omitted).

       We      conclude      that     Clay’s        within-Guidelines            sentence     is

reasonable.          While the court did not explicitly reference the

18 U.S.C.       §    3553(a)     factors    in       explaining        its    sentence,       it

offered a detailed explanation referring to those factors.                                   The

court     first      noted     the    seriousness          of    the   offense        and    then

considered          Clay’s    particular       circumstances.              See      18    U.S.C.

§ 3553(a)(1), (2)(A).                The court also recognized its discretion

to   disregard         the    career    offender          guideline,       but    permissibly

found that a sentence within Clay’s advisory guidelines range

was appropriate.             See id. § 3553(a)(3), (4).                    Moreover, while

the district court recognized that Clay’s sentence would be more

severe than those of his coconspirators, the court explained why

the disparity was appropriate.                  See id. § 3553(a)(6).                  Finally,

as   to     substantive       reasonableness,          we       conclude     that     Clay   has

failed to overcome the presumption of reasonableness accorded to

his within-Guidelines sentence.



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                                         IV.

        For   all    these    reasons,   we     affirm   the   district     court’s

judgments.       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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