                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4664


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

RANDALL JUSTIN MCGEE,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Thomas E. Johnston,
District Judge. (2:11-cr-00191-1)


Argued:   September 20, 2013            Decided:   November 18, 2013


Before DAVIS, KEENAN, and FLOYD, Circuit Judges.


Affirmed by published opinion.    Judge Davis wrote the opinion,
in which Judge Keenan and Judge Floyd joined.


ARGUED:    Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.   Monica D.
Coleman, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Lex A. Coleman, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant.      R. Booth Goodwin II, United
States   Attorney,  OFFICE   OF  THE   UNITED STATES  ATTORNEY,
Charleston, West Virginia, for Appellee.
DAVIS, Circuit Judge:

       Randall Justin McGee was convicted in the Southern District

of     West    Virginia     of       possession          with        intent    to     distribute

oxycodone, in violation of 21 U.S.C. § 841(a)(1), and sentenced

to     fifty-five       months        of    imprisonment.               On     appeal,        McGee

challenges the district court’s denial of his motion to suppress

drugs    seized       during     a   traffic        stop.       He    also     challenges       his

sentence       on     two   grounds:        Whether         the       district        court     (1)

committed clear error in finding that a seizure of cash from

McGee occurring approximately two weeks before his arrest arose

from    “relevant       conduct”       to   the          offense       of     conviction       (and

thereby       increased     his      sentencing          range);        and     (2)    committed

procedural          error   in       failing        to     impose       an      individualized

sentence. We reject McGee’s contentions and affirm the judgment.

                                               I.

                                               A.

       Law enforcement officers first encountered McGee on July

10, 2011, when police received a tip that a black male near a

Greyhound bus station in Charleston, West Virginia, was acting

suspiciously. Officers went to the station and approached the

man, later identified as McGee, who agreed to speak with them.

When first questioned, McGee said he was not traveling, but had

come to the bus station to meet a childhood friend. The officers

conducted a search of McGee’s person and found a bus ticket in

                                               2
the   name     of    Adam    Lowe,   for   travel    between    Charleston,       West

Virginia, and Detroit, Michigan. When the officers discovered

that McGee’s name did not match the name on the bus ticket, they

handcuffed him.

      McGee denied that he was in possession of any contraband

and consented to a search of his bag. Inside the bag, the police

found $5,800 in cash. McGee stated he did not have a job and had

not had one for over a year. He claimed he was traveling with

$2,000 to see the mother of his child and/or his mother. The

police    determined         that      McGee   did   not     have   a     reasonable

explanation for his possession of the cash and seized the money.

      Police contacted McGee’s mother, who said that McGee did

not yet have a child (though his girlfriend was pregnant at the

time).    She       also    reported    that   McGee   was     in   West    Virginia

“earning money,” and that McGee was supposed to bring the money

back with him. J.A. 313. Police also seized McGee’s cell phone,

which    had    several      text    messages.   One   message      was    from    his

brother, instructing McGee to have somebody else go into the bus

station and buy a ticket using a different name, and to wait in

the car while the ticket was purchased. Police believed other

texts were “drug-related,” such as a text stating, “Are they

moving? How many do you have left, and the total should be

$6,075.00.” Id.

      The police released McGee without arresting him.

                                           3
                                               B.

        A little more than two weeks later, on July 26, 2011, South

Charleston Police Officer Jonathan Halstead, a member of the

Metro       Drug    Unit,    stopped    a   Dodge      Avenger    on   I-77.   Halstead

stopped       the   car     after    observing      that    the   middle   brake   light

(located in the center of the back windshield) was not working

properly when the driver braked during a slowdown in traffic.

Halstead had the driver, Kardell Moore, get out of the car;

Moore       volunteered      to     Halstead    that    his   driver’s     license   was

suspended and the car was a rental. Halstead briefly spoke with

McGee, then seated in the front passenger seat, in order to

ascertain whether McGee had a valid driver’s license. Halstead

testified at the suppression hearing that McGee was nervous and

his         hands    were     shaking.         Halstead       obtained     identifying

information from McGee and called for backup. While Halstead was

checking McGee’s information, Officer David Richardson arrived

on the scene. 1

        Halstead      told    Richardson       what    he   had   observed     regarding

McGee, and Richardson agreed to speak with McGee. Richardson

spoke briefly with McGee and asked him to get out of the car.

McGee complied, and after exiting the vehicle he consented to a

        1
       A third officer, Owen Morris, arrived on the scene before
Detective Richardson. Morris did not witness the actual stop,
and he did not have any interaction with McGee.



                                               4
search of his person. During the search, Richardson felt items

he believed were pills in McGee’s shorts. Richardson put McGee

in hand restraints, and shook a bag of pills out of McGee’s

shorts.      The     bag   contained      246     oxycodone        pills     and   151

oxymorphone pills.

                                          II.

                                          A.

      McGee was charged with possession with intent to distribute

oxycodone, in violation of 21 U.S.C. § 841(a)(1). He filed a

motion to suppress the drugs seized during the traffic stop.

Specifically, he disputed Halstead’s claim that the car had a

defective brake light. The court held a hearing, at which the

three       police    officers      present       at     the     scene      testified.

Thereafter, the court issued an opinion denying the motion to

suppress,      finding     that     Halstead’s         testimony    was     “entirely

credible” and that he had probable cause to believe the driver

had committed a traffic violation by not having an operational

brake light. 2 J.A. 160.

        A few weeks later, McGee filed a renewed motion to suppress

on the basis of newly obtained evidence. McGee again challenged

the     validity     of    the    stop,    this    time        proffering    evidence


        2
       It is illegal for a vehicle to have any non-operational
brake lights in West Virginia. W. Va. Code § 17C-15-18(b).



                                           5
resulting from an investigation into the condition of the rental

car. That evidence tended to show that all the brake lights in

the vehicle were operational in November 2011, and there was no

record of a repair after the traffic stop in July 2011.

     The    court     held      another          hearing     on      the    matter.     At    the

hearing,     the    court    heard          further        testimony         from    Halstead;

Patrick    Kearns,    an     investigator             with     the    Federal       Defender’s

office; and Jason Tardiff, a risk manager with Enterprise Rent-

a-Car. Halstead again testified that he saw the defective brake

light prior to the traffic stop. Kearns testified that he found

the rental car at Enterprise’s car dealership in Kentucky, where

he tested the brake lights and found them to be fully functional

on November 18, 2011. Tardiff testified that it was customary

for Enterprise to keep a record of all complaints and repairs

made on any vehicle; there was no record of any complaints about

the defective brake light or any repair for a defective brake

light after the stop in July 2011.

     The court denied McGee’s renewed motion to suppress. The

court   noted      that   the    government            was     relying       exclusively       on

Halstead’s      testimony       to        meet       its   burden      of     showing    by     a

preponderance of the evidence that Halstead had probable cause

to stop the car. Specifically, the court held that “[a]lthough

Defendant’s     evidence        raises       a       serious    factual       issue,     it   is

ultimately    insufficient           to    overcome        Officer         Halstead’s   direct

                                                 6
and unimpeached testimony that the Avenger’s center brake light

was indeed nonoperational on July 26, 2011.” J.A. 264. The court

stated      that       Halstead     was   “frank     and   earnest,    and   his

recollection of the events of July 26, 2011, was unwavering.”

Id. The court pointed to two possible explanations, urged by the

government, for the lack of repair and/or record of a repair: a

temporary malfunction, such as an electric short, or that there

was a repair, but no record of it.

                                          B.

       Having denied the motions to suppress, the court conducted

a bench trial at which McGee did not contest the government’s

evidence. McGee only proceeded to trial in order to preserve his

right of appeal, and did not feel comfortable accepting certain

stipulations proposed by the government in plea negotiations.

The court found McGee guilty as charged.

                                          C.

       In   advance      of   sentencing,      the   presentence   investigation

report (“PSR”) laid out the “Offense Conduct,” describing the

traffic stop and McGee’s arrest, but also described the earlier

incident at the bus station. In accordance with the Guidelines,

the PSR converted the drugs seized from McGee during the traffic

stop     into      a    marijuana     equivalency.      Over   McGee’s    timely

objection, the PSR also converted the $5,800 seized from McGee

at the bus station, stating the cash “is viewed as representing

                                          7
proceeds of drug distribution,” since McGee was later found with

the drugs and “he has held no legitimate employment” since 2006.

J.A. 353. McGee’s base offense level under the Guidelines was 24

based on an equivalency calculation of 98.94 kg of marijuana,

including the 19.3 kg added by the cash proceeds equivalent.

Without the cash proceeds conversion, McGee’s base offense level

would have been 22. U.S.S.G. § 2D1.1(c)(9). After the reduction

for acceptance of responsibility, the final Guidelines range was

51 to 63 months (including the cash proceeds), instead of 41 to

51 months (without including the cash proceeds). 3

     McGee objected to the inclusion of the drug equivalent for

the cash seized at the bus station, arguing that there was no

evidence to connect the funds to the July 26, 2011 stop. McGee

argued   specifically   that   his   possession   of   a   ticket   in   a

different name and his lack of employment were insufficient to

support such a finding. McGee pointed out that there were no




     3
       In the PSR the Probation Officer recommended against an
adjustment for acceptance of responsibility, given that McGee
had a bench trial. McGee argued that his case falls into an
exception noted in the commentary to U.S.S.G. § 3E1.1, as he
only went to trial in order to preserve his right of appeal on
issues not related to his factual guilt. The government argued
that McGee should not be granted the adjustment because his
arguments against including the drug equivalent of the cash
seized at the bus station amounted to “frivolously denying
relevant conduct.” J.A. 306. Notably, the court rejected the
government’s argument and awarded the adjustment.



                                     8
drugs seized with the money and that McGee was never arrested or

charged with anything related to the bus station incident.

      The court held a sentencing hearing at which the government

explained        the   bus    station       incident.     McGee    accepted       the

government’s       factual     proffer,     acknowledging       that    there    were

conflicting statements and suspicious behavior, but maintained

that there was no legitimate connection between the seizure of

the cash and the traffic stop two weeks later. The court took

the     matter     under     advisement       and   continued     the   sentencing

hearing.

      At the continued sentencing hearing, the court determined

that the government had met its burden of proof to show that the

cash involved relevant conduct. The court noted that it was “a

close     call”     but    McGee’s   conflicting         explanations      for   his

presence at the bus station paired “with the fact that just two

weeks later, he was caught with a rather large bag of pills

. . . not very far at all from that bus station” were enough to

meet this burden. J.A. 322-23. The court therefore found a final

offense level of 22, a criminal history category of III, and a

Guidelines range of 51 to 63 months.

      McGee      requested    a   variant     sentence    of   forty-one    months,

noting that he had strong family support, secured employment

following his pre-trial release, was relatively young and just

“made a dumb mistake trying to take some shortcuts and passing

                                          9
through this state.” J.A. 327. The government contended that

McGee intended to distribute the drugs in West Virginia and was

not just passing through, pointing out the bus station incident

two weeks before the traffic stop.

       The    court      considered       the       Guidelines       and     the   18      U.S.C.

§ 3553(a)      factors,        and    pronounced         a    sentence       of    fifty-five

months. The court noted that “stiffer sentences for these pill

cases are justified because of the seriousness of the offense”

and the necessity for deterrence. J.A. 332. The court pointed

out    that    there      is     “a   problem       with     drugs        coming   into       West

Virginia, particularly Southern West Virginia, from Detroit” and

that   he     hoped      “that    sentences         in   these      cases     where      I    have

defendants      from      Detroit     .   .     .   will     send     a    message      back    to

Detroit that the drugs being brought here from Detroit are not

welcome      and   that    serious        punishments         await       people   who       bring

drugs here from Detroit.” J.A. 331, 332.

       McGee objected to the court’s decision to use the sentence

to “send a message” to Detroit, and denied that there was any

evidence      of    drug       trafficking          in   West       Virginia.      The       court

overruled McGee’s objections, stating that it was within the

parameters of the § 3553(a) factors to consider the source of

the    drugs.      The     court      acknowledged           that    “implicit        in     that

sentence and my reasons for the sentence is that this defendant

was bringing those pills from Detroit to West Virginia” but that

                                              10
it was reasonable to conclude that the drugs came from Detroit

to West Virginia given that was where McGee drove from, and

where all of his phone numbers were from. J.A. 337.

       McGee filed a timely notice of appeal.

                                           III.

       McGee first challenges the district court’s denial of his

motion to suppress.

       We     review       the   factual    findings      underlying      a    district

court’s ruling on a motion to suppress for clear error and its

legal conclusions de novo. United States v. Vaughan, 700 F.3d

705, 709 (4th Cir. 2012) (citations omitted). When the district

court denies a motion to suppress, we view the evidence in the

light most favorable to the government. Id. The government bears

the    burden    of    proof      in    justifying    a     warrantless       search   or

seizure. Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984); United

States v. Watson, 703 F.3d 684, 689 (4th Cir. 2013).

           The Fourth Amendment guarantees “[t]he right of the people

to    be    secure    in    their   persons,      houses,    papers,   and     effects,

against unreasonable searches and seizures.” U.S. Const. amend.

IV. “Temporary detention of individuals during the stop of an

automobile by the police, even if only for a brief period and

for    a    limited    purpose,        constitutes   a    ‘seizure’    of     ‘persons'

within the meaning of this provision.” Whren v. United States,

517 U.S. 806, 809–10 (1996). “Because an ordinary traffic stop

                                            11
is ‘a limited seizure more like an investigative detention than

a custodial arrest,’ we employ the Supreme Court’s analysis for

investigative     detention          used       in   Terry      v.    Ohio,     392     U.S.   1

(1968), to determine the limits of police conduct in routine

traffic stops.” United States v. Guijon–Ortiz, 660 F.3d 757, 764

(4th Cir. 2011) (quoting United States v. Rusher, 966 F.2d 868,

875 (4th Cir. 1992)). Detention of passengers during a traffic

stop provides the basis for them to challenge the legality of

the stop under the Fourth Amendment. Brendlin v. California, 551

U.S. 249, 256-63 (2007).

     “Observing         a       traffic         violation        provides          sufficient

justification     for       a   police      officer        to    detain      the      offending

vehicle   for   as   long       as   it     takes     to     perform      the    traditional

incidents of a routine traffic stop.” United States v. Branch,

537 F.3d 328, 335 (4th Cir. 2008). The parties agree that a non-

functioning     brake       light    is     a    violation       of    the      law    in   West

Virginia. See W. Va. Code § 17C-15-18(b). The government relies

on   Halstead’s      testimony        describing           the       non-operative          brake

light, which the district court found “frank and earnest”; the

officer’s memory was “unwavering.” J.A. 264. McGee argues that

this testimony is uncorroborated and fatally undermined by the

testimony from Investigator Kearns and Enterprise’s Tardiff that

the brake lights were fully functional when Kearns tested them



                                                12
in November 2011 and there were no repairs made between July

2011 (the time of the stop) and November 2011.

     McGee seeks support from United States v. Ellington, 396 F.

Supp. 2d 695, 700-01 (E.D. Va. 2005), and Carmichael v. Village

of Palatine, 605 F.3d 451, 455 (7th Cir. 2010). In reliance on

those cases, he contends that where it is only an officer’s

testimony against subsequent evidence of operative brake lights,

the court must find that there is insufficient evidence of a

non-operative brake light. Even apart from the fact that these

cases are not binding authority on us, McGee reads far too much

into them. In both Ellington and Carmichael, police officers

cited a non-operative brake light as the reason for a traffic

stop, Ellington, 396 F. Supp. 2d at 700; Carmichael, 605 F.3d at

455, but in each, the suppression hearing judge made findings

materially unlike those made in the case at bar.

     In   Ellington,      there    was   testimony     from    the     defendant’s

father, who took possession of the car immediately after the

stop, and of a vehicle mechanic, each of whom attested that all

the brake lights were functional. See 396 F. Supp. 2d at 700.

Ultimately,    the   court      found    that   the    officers      had    made   an

unreasonable   mistake     in     concluding    that     the   brake       light   was

inoperative.   Id.   at    701    (“[T]he     standard    is   not    whether      the

brake light was actually non-functioning, but rather whether the

officers made a reasonable mistake in believing that the center

                                         13
brake light was non-functioning[;] the Court must ask whether

the   government      has     demonstrated     by    a    preponderance      of   the

evidence that the officer’s mistake was reasonable. The Court

finds that the government has failed to surmount that burden.”).

The failure of the government to satisfy its burden of proof in

the circumstances of that case, therefore, has no relevance to

whether it did so on the facts here.

      Carmichael is similarly unavailing to McGee. There, as is

frequently   the     case,     the   outcome    of       the   suppression    ruling

hinged entirely on witness credibility. Specifically, the police

officer conducting the stop told the individuals in the car that

he had pulled the car over because the car windows were tinted,

and the car did not have a front license plate, but he later

testified    that     he     had   observed    inoperative       tail   and    brake

lights. Carmichael, 605 F.3d at 454-55. The hearing judge made a

specific finding that the officer “out and out lied” under oath

regarding the brake light malfunction. Id. at 455.

      This case, too, turns on credibility, but cuts the other

way, as the district court found the government satisfied its

burden.     We      “defer      to    a    district        court’s      credibility

determinations, for ‘it is the role of the district court to

observe witnesses and weigh their credibility during a pre-trial

motion to suppress.’” United States v. Abu Ali, 528 F.3d 210,

232 (4th Cir. 2008) (quoting United States v. Murray, 65 F.3d

                                          14
1161, 1169 (4th Cir. 1995)). This does not mean, of course, that

“a   trial    judge       may    insulate        his    findings       from    review    by

denominating them credibility determinations, for factors other

than demeanor and inflection go into the decision whether or not

to believe a witness.” Anderson v. City of Bessemer City, 470

U.S. 564, 575 (1985). For instance, “[d]ocuments or objective

evidence may contradict the witness’ story; or the story itself

may be so internally inconsistent or implausible on its face

that a reasonable factfinder would not credit it.” Id.

     The     issue    presented      here    is        whether   the       district    court

committed clear error in making the finding that it did, in the

manner that it did. Vaughan, 700 F.3d at 709. Although McGee’s

evidence      that    the        brake   light          was   not      inoperative        is

significant, it is nonetheless circumstantial and relies on the

untested reliability of a third party’s recordkeeping. In short,

the defense evidence falls short of establishing clear error by

the district court. Even if we might have reached a different

determination if presented with the same evidence in the first

instance, we cannot say that it was clear error for the district

court to rule as it did. Accordingly, we do not disturb the

district court’s ruling on the motion to suppress.

                                         IV.

     We      turn    now    to     McGee’s       challenge       to    the     procedural

reasonableness       of    his     sentence.       We     review       a    sentence    for

                                            15
procedural      reasonableness       using         the   abuse-of-discretion

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

2010).     In   analyzing    procedural       reasonableness,        we        first

determine whether the district court correctly calculated the

advisory Guidelines range. Id. “The government bears the burden

of proving the facts necessary to establish the applicability of

[a   sentencing]     enhancement     by      the     preponderance        of    the

evidence.” United States v. Garnett, 243 F.3d 824, 828 (4th Cir.

2001). We “review factual findings for clear error, and legal

conclusions de novo.” United States v. Davis, 679 F.3d 177, 182

(4th Cir. 2012).

                                     A.

     McGee first challenges his sentence on the ground that the

district court erred in including the drug equivalent of the

cash seized from him weeks before his arrest in its calculation

of his Guidelines range. We discern no error in the court’s

finding.

     The    base   offense   level    in   drug      distribution    cases       is

determined on the basis of the quantity of drugs. United States

v. Pauley, 289 F.3d 254, 258 (4th Cir. 2002). The government

must prove by a preponderance of the evidence the quantity of

drugs for which a defendant is responsible. United States v.

Bell, 667 F.3d 431, 441 (4th Cir. 2012).                 Where police seize

cash and not drugs from a defendant, the cash can be converted

                                     16
to a quantity of drugs consistent with the normal selling price

for the drugs. United States v. Sampson, 140 F.3d 585, 592 (4th

Cir. 1998).

      McGee does not contest the quantity of drugs seized during

the traffic stop, only the addition of the drug equivalent from

the   cash    seized   at   the    bus    station.    Under      the    Guidelines,

conduct which is in the “same course of conduct or common scheme

or plan as the offense of conviction” can be considered in the

calculation of the base offense level. U.S.S.G. § 1B1.3(a)(2).

Acts are in the “same course of conduct” if

      they are sufficiently connected or related to each
      other as to warrant the conclusion that they are part
      of a single episode, spree, or ongoing series of
      offenses.   Factors  that   are  appropriate   to   the
      determination of whether offenses are sufficiently
      connected or related to each other to be considered as
      part of the same course of conduct include the degree
      of   similarity   of  the  offenses,   the   regularity
      (repetitions) of the offenses, and the time interval
      between the offenses. When one of the above factors is
      absent, a stronger presence of at least one of the
      other factors is required.

U.S.S.G. § 1B1.3 cmt. 9(b).

      McGee    maintains    that    the       government   did    not    meet   its

burden, as the only evidence that McGee’s presence at the bus

station was related to drug trafficking was: first, that McGee

gave several inconsistent stories for why he was in Charleston

at the bus station, and second, that McGee had text messages on

his phone which the police interpreted as relating to drugs.


                                         17
McGee points out that there were no drugs found on him at the

bus station, and that none of the text messages actually stated

anything about “pills” or other drugs. The government contends

it was not clear error for the court to credit these two factors

as sufficient to find that McGee’s actions at the bus station

were a part of the “same course of conduct” involving the pills

on his person at the traffic stop.

      McGee’s arguments fail. The police interacted with McGee

twice, both times in places of interstate transportation (once a

bus   station,    and   the    other   on    an     interstate    highway);   once

seizing   a   substantial          amount    of     cash,   and    the   other   a

significant      quantity     of   drugs    ready    for    distribution.     McGee

could not provide a consistent explanation for why he had that

much cash on him when the police interviewed him at the bus

station. This, combined with his suspicious behavior in having a

ticket under someone else’s name and text messages which were

consistent with a drug trafficking scheme, is enough to make it

more likely than not that McGee was transporting drug proceeds

in the same series of actions as that which he was actually

charged with when he was found in possession of the pills.

      The district court did not err in finding that the two

incidents comprised the same course of conduct or in adding the

drug equivalent of the cash seized when it calculated the drug

quantity that drove the calculation of McGee’s sentencing range.

                                        18
                                                B.

       Finally, McGee challenges his sentence on the ground that

the    district     court       erred          in    failing       to   afford        him     an

individualized assessment in arriving at his sentence. Gall v.

United States, 552 U.S. 38, 50 (2007) (sentencing court “must

make    an     individualized              assessment         based     on     the      facts

presented”); United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009). McGee complains that the district court simply put

him in a class of people who brought drugs from Detroit and

sentenced him on that basis, pointing to the court’s emphasis on

using the sentence to “send a message” to offenders in Detroit.

J.A. 332.

       Here,    the        district            court      offered       a     sufficiently

individualized        rationale        for          its   sentence,         without     undue

emphasis on McGee’s status as a nonresident importer of drugs

into the district. In addition to the statements about Detroit,

the court made numerous references to McGee’s criminal history,

the nature of the offense, and the need for deterrence. The

district court also specifically denied McGee’s request for a

variant      sentence      of   forty-one            months    with     an     articulable

justification.        We    therefore           find      little    merit      in     McGee’s

challenge.

       Deterrence     is   a    goal       a    sentencing     court    must     take       into

consideration.      18     U.S.C.      §       3553(a)(2)(B)       (“the     need    for     the

                                                19
sentence imposed . . . to afford adequate deterrence to criminal

conduct”); see, e.g., United States v. Montes-Pineda, 445 F.3d

375, 381 (4th Cir. 2006). The court’s belief that McGee, in

particular, needed to be deterred, as well as others similarly

situated, unquestionably was a valid consideration. Contrary to

McGee’s arguments, the court’s desire to send a message was not

just about the connection between McGee and Detroit, it was also

about   McGee’s     own     criminal    history.      The    court     stated    that

“[W]hat’s   clear      to   me   is   that    your   prior   contacts     with   the

criminal justice system, including the sentences you were given,

did not deter you from engaging in this activity. So it’s clear

that you need a stiffer penalty to get the message.” J.A. 332.

     We pause to note that, viewed in isolation, some of the

district court’s comments evince a perilously close flirtation

with the line we drew in United States v. Diamond, 561 F.2d 557

(4th Cir. 1977)(per curiam). In that case, the district court

sentenced   two        defendants      convicted     of     stealing    interstate

shipments of cigarettes and, in doing so, noted that “the Court

takes a dim view of people coming down from New York to commit

their crimes in Virginia.” Id. at 559. Although we affirmed the

convictions,      we      vacated     the     sentences      and     remanded    for

resentencing before a different district judge, holding:

     The inference that the district judge considered as a
     factor in sentencing the fact that defendants who
     committed a crime within the district in which he

                                         20
       presided were nonresidents is inescapable. We cannot
       permit a district judge who is an officer of a
       national judicial system and who is enforcing a
       national   criminal   code   to  be   moved   by   such
       considerations of parochialism in imposing sentences.

Id.

       In fashioning the sentence in the case at bar the district

court relied in part on the fact that McGee brought narcotics

from out of state, and specifically from Detroit, Michigan. The

court stated:

       Finally, it is, as [the prosecutor] indicates, no
       secret that there is a problem with drugs coming into
       West Virginia, particularly Southern West Virginia,
       from Detroit. I don't know why that is, because there
       are other cities that are closer to West Virginia that
       we see much less drugs coming from, but for some
       reason, people from Detroit seem to look at West
       Virginia as a drug market for them to bring their
       drugs to.

       . . . .

       I, in particular, hope that sentences in these cases
       where I have defendants from Detroit, and you’re by no
       means the first defendant I have had from Detroit,
       will send a message back to Detroit that the drugs
       being brought here from Detroit are not welcome and
       that serious punishments await people who bring drugs
       here from Detroit.

J.A. 331-32. 4 Defense counsel, acknowledging his responsibility

to    zealously   protect   his   client’s   interests   and   to   make   an


       4
       Indeed, in an earlier appeal before us the district court
made clear that it has “always given stiffer sentences” to
“individuals bringing drugs into West Virginia from out of
state.” United States v. Perry, No. 2:10-cr-00139 (S.D. W. Va.
May 6, 2011) (ECF No. 101, at 15), aff’d, 456 Fed. App’x 226,
(Continued)
                                     21
adequate record, respectfully, and understandably, objected to

the court’s above comments and thereby preserved the issue for

review.

      Although, in light of Diamond, the record is not entirely

free of ambiguity, i.e., whether a resident drug dealer in West

Virginia, whose source of supply is out of state and who travels

herself to import those drugs into the district, would also be

subject to “stiffer sentences,” we conclude that the district

court did not err or otherwise abuse its sentencing discretion.

Ultimately,     the   district    court      sentenced    McGee      to    a   term   of

imprisonment in the middle of the applicable advisory Guidelines

range (after awarding an acceptance of responsibility adjustment

over the government’s objection), and considered the particular

criminal history of the defendant, as well as the specifics of

his   offense     and    the     need   for     deterrence       –    all       factors

appropriate     for     consideration        under   18    U.S.C.         §    3553(a).

Accordingly,     we   hold     that   the    sentence     was   not       procedurally

unreasonable for lack of individualized assessment.




2011 WL 6000705 (4th Cir. Dec. 1, 2011) (unpublished). See also
United States v. Loper, 293 F. App'x. 999 (4th Cir. 2008)
("Moreover, [the district court] stated that it believed the
sentence was appropriate given the amount of drugs involved in
this case, Loper's significant criminal history, and the fact
that Loper was involved in bringing drugs into West Virginia
from out of state.").



                                        22
                          V.

For the foregoing reasons, the judgment is

                                             AFFIRMED.




                          23
