                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4269


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN MOWAD JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:09-cr-00309-FL-2)


Submitted:   January 31, 2012             Decided:   February 9, 2012


Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ferris R. Bond, BOND & NORMAN, Washington, D.C., for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            John Johnson was convicted by a jury of both counts of

an indictment charging him with conspiracy to distribute cocaine

and distribution of cocaine, in violation of 21 U.S.C. §§ 841,

846 (2006).        The district court sentenced Johnson to 28 months

imprisonment on each count, to run concurrently.                         Johnson noted

a timely appeal in which he claims, first, that the district

court   erred     by     failing    to,    sua    sponte,      inquire     whether     his

failure to testify on his own behalf was knowing and voluntary.

Second,    Johnson       asserts     that     his      sentence     is   unreasonable.

Finding no error, we affirm.

            The        facts     presented        at     trial      established        the

following.        In September 2008, Johnson acted as a “middle man”

in a cocaine transaction between his co-defendant Edgar Staton

and Alpha Privette, a confidential informant for the Raleigh,

NC, Police Department.             Privette testified that he had first met

Johnson    the     month    prior     after      selling      him   (Johnson)      a   car

through    Craigslist.           Johnson     offered      to    obtain     cocaine     for

Privette     if     he     so    desired.           Afterward,       Privette      began

cooperating with the Raleigh police and called Johnson to set up

a controlled purchase of two ounces of cocaine; he and Johnson

arranged   to     meet     and   then     proceeded      to    Johnson’s    auto   parts

business together.          Once inside, Privette testified that Johnson

showed him the bag with cocaine but, because it was more than

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the two ounces that Privette wished to purchase, Johnson left to

retrieve a scale.       He returned a short time later with his co-

defendant    Edgar   Staton.     Johnson      weighed    the    cocaine    on   the

scale, gave it to Privette, who handed $2000 cash to Johnson.

Johnson then gave the money to Staton.             Johnson and Staton were

immediately arrested.

            The jury returned a guilty verdict as to both counts.

The   presentence    report    (PSR)   held    Johnson    accountable       for   a

total of 54.6 grams of cocaine, resulting in a base offense

level of 16.         With a criminal history category of III, the

recommended     advisory   Guidelines      range   was     27    to   33   months

imprisonment.     The district court adopted the presentence report

and imposed a within-Guidelines sentence of 28 months on each

count, to run concurrently.       Johnson noted a timely appeal.

            Johnson first argues that the district court failed to

sua sponte inquire into whether Johnson’s failure to testify on

his own behalf was a knowing, voluntary, and intelligent waiver

of his right to do so.         Because he failed to raise this issue

below, our review is for plain error.                   See United States v.

Olano, 507 U.S. 725, 732 (1993).              We find no error--plain or

otherwise.

            First, Johnson was advised during his arraignment of

his right to testify and present evidence at trial.                        Second,

there is no affirmative duty on a district court to obtain an

                                       3
on-the-record waiver of a defendant’s right to testify.                                          See

United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991); see

also    Sexton    v.     French,    163    F.3d          874,     882    (4th       Cir.       1998)

(“[T]rial counsel, not the court, has the primary responsibility

for    advising    the    defendant       of       his    right    to    testify       and      for

explaining the tactical implications of doing so or not.”).

            Johnson       argues    nonetheless            that,       under    “exceptional

circumstances,” the district court has to duty to make an on-

the-record inquiry to determine if a defendant’s decision not to

testify is knowingly and intelligently made.                             We find no such

circumstances on the record before us.

            Johnson       also     challenges            the    reasonableness            of    his

sentence.         Specifically,       he       asserts          that    he     was    a        minor

participant       in   the   offense       and       should       have       been    sentenced

accordingly; that his sentence is unjustly harsh as compared

with Staton; and that he should have received credit for time

served pretrial on state criminal charges arising out of the

same conduct.

            We review a sentence for reasonableness under an abuse

of discretion standard.            Gall v. United States, 552 U.S. 38, 51

(2007).       This       review     requires         consideration             of    both       the

procedural and substantive reasonableness of a sentence.                                       Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

In determining the procedural reasonableness of a sentence, we

                                               4
consider         whether      the    district            court    properly      calculated       the

defendant’s            Guidelines        range,           treated       the     Guidelines           as

advisory, considered the 18 U.S.C. § 3553(a) (2006) factors,

analyzed          any      arguments        presented             by     the      parties,       and

sufficiently explained the selected sentence.                                 Gall, 552 U.S. at

51.          A    sentence        imposed        within          the    properly        calculated

Guidelines range is presumed reasonable by this court.                                     See Rita

v. United States, 551 U.S. 338, 347 (2007); United States v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).                                        We find

that    the       sentence        imposed       by       the     district      court     was    both

procedurally and substantively reasonable.

                 Johnson argues that he should have received a four-

level reduction for having a minimal role in the offense.                                      Under

U.S. Sentencing Guidelines Manual (USSG) § 3B1.2(a)-(b) (2010),

a defendant who is a “minimal participant” in criminal activity

may    have       his    offense        level    reduced          by    four    levels,        and    a

defendant         who    is   a   “minor    participant”               may    have   his    offense

level reduced by two levels.                     Cases falling between subsections

(a)    and       (b)    warrant     a   three-level            reduction.         USSG     § 3B1.2.

Role adjustments are determined on the basis of the defendant’s

relevant         offense      conduct.          United         States    v.    Fells,    920    F.2d

1179,    1183-84          (4th      Cir.    1990).               In    deciding      whether     the

defendant played a minor or minimal role, the “critical inquiry

is . . . not just whether the defendant has done fewer bad acts

                                                     5
than his co-defendants, but whether the defendant’s conduct is

material      or      essential        to    committing      the       offense.”         United

States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (internal

quotation marks omitted).

            The        district       court    denied       Johnson’s       motion      for    a

reduction in his offense level based on his role in the offense,

“given [Johnson’s] integral involvement in the commission of the

offense. . . . [he] arranged the controlled purchase, conducted

a transaction at his business, brought cocaine to the meeting,

served as an intermediary for payment. . . . the role that he

played     was       essential        for    the    commission         of   the      offense.”

Because the district court properly found that Johnson’s conduct

was “material or essential to committing the offense,” the court

did not err in denying his motion for a reduction in his offense

level.

            Johnson also argues that his sentence is unreasonable

because he received a harsher sentence than his co-defendant

(who     received       only     an     11-month         sentence.)         The      statutory

sentencing          factors     that    a    district       court      must     consider      in

selecting       a    sentence     include       “the      need   to     avoid     unwarranted

sentence disparities among defendants with similar records who

have   been         found     guilty    of    similar       conduct.”           18     U.S.C.A.

§ 3553(a)(6)         (West     2000     &   Supp.    2006).        A    disparity       in    the

length     of       sentences      received         by     co-defendants          is    not    a

                                                6
permissible ground for a departure from the Guideline range,

absent prosecutorial misconduct such as manipulating Guideline

factors.       United States v. Withers, 100 F.3d 1142, 1149 (4th

Cir.    1996).         Johnson      does    not    allege     that   any   sentencing

manipulation by the Government created a sentencing disparity.

Moreover, Staton pled guilty and, therefore, is “not similarly

situated      to   a   defendant      who    provides       no   assistance   to   the

government and proceeds to trial.”                    United States v. Jeffery,

631    F.3d    669,    679   (4th    Cir.)       (internal    quotations    omitted),

cert. denied, No. 10-10894, 2011 WL 4532052 (Oct. 3, 2011).

              Finally, Johnson claims that he should have received

credit for time served in state custody.                     Because he raises this

issue for the first time on appeal, we review it for plain

error.        Olano, 507 U.S. at 732.                Under 18 U.S.C. § 3585(b)

(2006), the defendant shall receive credit for any time spent in

detention before this date:                “(1) as a result of the offense for

which the sentence was imposed; or (2) as a result of any other

charge for which the defendant was arrested after the commission

of the offense for which the sentence was imposed; that has not

been credited against another sentence.”                     The Supreme Court has

held that § 3585(b) does not authorize a district court to award

such credit in the first instance; rather, the Attorney General,

through the Bureau of Prisons, is authorized to compute credit

due under the statute.              United States v. Wilson, 503 U.S. 329,

                                             7
333-35 (1992).       Therefore, the district court did not plainly

err in failing to award credit for time Johnson served in state

custody.

            We find that Johnson’s sentence is both procedurally

and   substantively    reasonable.        Accordingly,   we    affirm     his

conviction and sentence.      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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