                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 14-4508


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

OSHAY TERRELL JONES,

               Defendant - Appellant.



                            No. 14-4523


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

KEARRAH MONIQUE JONES,

               Defendant - Appellant.



                            No. 14-4524


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

QWANESHA TYANN MORRIS,
               Defendant - Appellant.



                            No. 14-4525


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

DOMINIQUE MAURICE JONES,

               Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.    Samuel G. Wilson, District
Judge.     (7:13-cr-00038-SGW-1;  7:13-cr-00038-SGW-3; 7:13-cr-
00038-SGW-4; 7:13-cr-00038-SGW-2)


Submitted: June 30, 2015                  Decided:   August 4, 2015


Before SHEDD, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Krysia Carmel Nelson, LAW OFFICES OF KRYSIA CARMEL NELSON, PLC,
Charlottesville, Virginia; John E. Davidson, DAVIDSON & KITZMAN,
PLC,   Charlottesville,   Virginia;    Michelle   C.F.  Derrico,
COPENHAVER, ELLETT, CORNELISON & DERRICO, Roanoke, Virginia;
Melissa W. Friedman, Roanoke, Virginia, for Appellants. Anthony
P. Giorno, Acting United States Attorney, R. Andrew Bassford,
Assistant United States Attorney, Roanoke, Virginia; Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, DC, for Appellee.


Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

       A    jury    convicted      Oshay     Jones,    Kearrah       Jones,      Dominique

Jones,      (collectively          “the     Joneses”)       and      Qwanesha       Morris

(together “Appellants”) of conspiracy to possess with intent to

distribute 28 grams or more of cocaine base, in violation of 21

U.S.C. §§ 841(a), 846 (2012).                The district court sentenced each

appellant to a below-Guidelines sentence: Oshay and Dominique to

280     months’       imprisonment          each,     Kearrah        to    120     months’

imprisonment, and Morris to 60 months’ imprisonment.                             The court

also    ordered      the   Joneses     to    forfeit    $220,000          and   Morris    to

forfeit $40,000.

       Appellants       assert      that     the     district        court      erred    in:

(1) refusing their proposed jury instruction that drug quantity

was an element of the offense, but sua sponte instructing on a

lesser      included       offense;       (2) admitting       telephone         recordings

without      adequate       foundation;           (3) ordering       forfeiture;         and

(4) imposing          procedurally          and     substantively            unreasonable

sentences.         For the reasons that follow, we affirm.

                                             I.

       Appellants          first       challenge        the       district         court’s

instructions to the jury regarding the drug weight attributable

to    the   conspiracy.         They      contend    that     drug    quantity     was    an

element necessary for conviction pursuant to Alleyne v. United

States, 133 S. Ct. 2151, 2158 (2013), which held that any fact

                                             3
that    increases        a    defendant’s            statutory    minimum    sentence          is

considered an element of the offense.                          Appellants also contend

that the court’s sua sponte lesser included offense instruction

was error because it was not requested by any of the parties,

they lacked sufficient notice of the lesser offense to prepare

an adequate defense, and it interfered with their all-or-nothing

trial strategy—that is, they were either guilty as explicitly

charged in the superseding indictment or not guilty at all.

       “We review for abuse of discretion the district court’s

denial of [a] proposed jury instruction[].”                            United States v.

Sonmez,     777    F.3d       684,       688    (4th    Cir.     2015).      An    abuse       of

discretion        exists      where       the    proposed      instruction        “(1) [was]

correct, (2) [was] not substantially covered by the charge that

the district court actually gave to the jury, and (3) involved

some    point       so       important         that     the    failure      to    give     the

instruction[] seriously impaired the defendant’s defense.”                               Id.

       We   conclude         that       the    district   court     did   not     abuse    its

discretion because drug quantity is not an element that must be

established for conviction.                     See United States v. Hickman, 626

F.3d    756,      770-71      (4th       Cir.    2010)     (vacating      conviction       and

sentence for conspiracy to distribute and possess with intent to

distribute one kilogram or more of heroin, and remanding with

directions to the district court for “entry of judgment against

Hickman     under    Count          I    of    the    indictment    for     conspiracy         to

                                                 4
distribute and to possess with intent to distribute heroin in

the amount of one hundred grams or more”).

      Moreover, a “defendant may be found guilty of . . . [a

lesser] offense necessarily included in the offense charged.”

Fed. R. Crim. P. 31(c).          “A defendant charged with conspiracy

to . . . distribute an amount of a controlled substance can, if

the   evidence     warrants,    be    convicted    of     one    of   the    lesser

included offenses based on a smaller amount of the substance.”

United States v. Cabrera-Beltran, 660 F.3d 742, 753 (4th Cir.

2011)   (internal    quotation       marks    omitted).         Parties     may   not

reject a lesser included offense instruction, “provided that the

evidence would permit a jury rationally to find the defendant

guilty of the lesser offense and acquit him of the greater.”

Lespier, 725 F.3d at 450 (internal quotation marks and brackets

omitted).

                                       II.

      Appellants next challenge the district court’s admission of

audio recordings of jailhouse telephone calls between Oshay and

Dominique and their associates.              We review a district court’s

evidentiary rulings for abuse of discretion.                    United States v.

Taylor, 754 F.3d 217, 226 n.* (4th Cir.), petition for cert.

filed, __ S. Ct. __ (Sept. 4, 2014) (No. 14-6166).                    An abuse of

discretion    occurs     only        when    the   district        court     “acted

arbitrarily   or    irrationally       in    admitting    evidence.”         United

                                        5
States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal

quotation marks omitted).       The hearsay rule allows admission of

records of a regularly conducted activity “if[] (A) the record

was made at or near the time by . . . someone with knowledge;

(B) the record was kept in the course of a regularly conducted

activity of a business . . . ; [and] (C) making the record was a

regular practice of that activity.”           Fed. R. Evid. 803(6).       The

nature of the record may be established by “the custodian or

another qualified witness.”      Fed. R. Evid. 803(6)(D).

     The term “qualified witness” is broadly construed.                   See

United States v. Franco, 874 F.2d 1136, 1139-40 (7th Cir. 1989)

(noting liberal interpretation of term by Third, Sixth, Seventh,

and Eighth Circuits).        A qualified witness is not required to

“have personally participated in or observed the creation of the

document.”   United States v. Moore, 791 F.2d 566, 574 (7th Cir.

1986).   Nor is he required to “know who actually recorded the

information.”     United States v. Dominguez, 835 F.2d 694, 698

(7th Cir. 1987).     Further, “[t]here is no requirement that the

witness . . . be able to personally attest to its accuracy.”

United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990).

     Appellants    contend   that   the     court   improperly    found   that

Lieutenant   Frank   Harris,     the       assistant   chief     correctional

officer, was a qualified witness.              We disagree.       The record

reveals that Harris was in charge of the phone recordings as the

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jail’s custodian of records, explained how the recordings were

made, and demonstrated his understanding of the system and how

the recordings were stored and retrieved.                         Thus, we discern no

abuse of the court’s discretion.

                                               III.

       Appellants next assert that the district court erred in

ordering    forfeiture,             arguing    the    court’s     determinations    lack

support in the record.                 In an appeal from criminal forfeiture

proceedings, we review the district court’s findings of fact for

clear error and conclusions of law de novo.                           United States v.

Herder,    594      F.3d       352,    363     (4th   Cir.    2010).      A   defendant

convicted      of    a     drug       trafficking       offense    must   forfeit   any

property constituting the proceeds of the offense.                            21 U.S.C.

§ 853(a)    (2012).            To    obtain     forfeiture,     the    Government   must

establish by a preponderance of the evidence a nexus between the

property for which it seeks forfeiture and the crime.                           Fed. R.

Crim. P. 32.2(b)(1)(A).                Where, as here, the Government’s theory

is that the property constitutes proceeds of the offense, a “but

for” test is applied.                See, e.g., United States v. DeFries, 129

F.3d   1293,     1313      (D.C.       Cir.     1997)    (collecting      cases).     We

conclude    that         the        district     court’s     determination     of    the

forfeiture judgment amounts was supported by the record and is

free of error.



                                                7
                                            IV.

       Finally, the Joneses challenge the reasonableness of their

sentences,        which    we    review    for    abuse     of    discretion.           United

States v. Howard, 773 F.3d 519, 527-28 (4th Cir. 2014).                                     We

first review for procedural error, such as improper calculation

of   the     Guidelines      range,       failure    to    consider          the   18   U.S.C.

§ 3553(a) (2012) sentencing factors, selecting a sentence based

on clearly erroneous facts, or failure to adequately explain the

sentence.         Howard, 773 F.3d at 528.                  Absent any significant

procedural        error,    we    examine     substantive         reasonableness         under

“the totality of the circumstances.”                        Id. (internal quotation

marks omitted).           Sentences within or below a properly calculated

Guidelines range are presumed reasonable, and the presumption

“can       only    be     rebutted    by      showing       that       the     sentence     is

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

factors.”         United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.), cert. denied, 135 S. Ct. 421 (2014).

       A    district       court’s    legal       conclusions         at    sentencing     are

reviewed de novo and factual findings for clear error.                                  United

States v. Gomez-Jimenez, 750 F.3d 370, 380 (4th Cir.), cert.

denied, 135 S. Ct. 305 (2014), and cert. denied, 135 S. Ct. 384

(2014).       In resolving factual disputes, a “sentencing court may

give weight to any relevant information before it, including

uncorroborated          hearsay,      provided       that        the       information     has

                                              8
sufficient indicia of reliability to support its accuracy.”                             Id.

“[W]e    afford    considerable        deference        to   a    district       court’s

determinations      regarding       the    reliability       of   information          in    a

PSR,” and will not disturb such determinations unless we have

“the    definite    and    firm     conviction        that   a    mistake       has    been

committed.”       United States v. McDowell, 745 F.3d 115, 120 (4th

Cir. 2014) (internal quotation marks omitted), cert. denied, 135

S. Ct. 942 (2015).

       The   Joneses      contend    that       the    district     court    erred          in

calculating     the    Guidelines         ranges      because     the    base    offense

levels determined by the presentence reports (“PSRs”) were based

on double- and triple-counted drug quantities, and that each was

responsible for only a fraction of that amount.                         The Government

responds that the district court properly relied on the drug

quantity determinations in the PSRs, and that the Joneses are

responsible for all reasonably foreseeable acts in furtherance

of the conspiracy.

       Under the Guidelines, a defendant convicted of conspiring

to   distribute     controlled       substances        “is   accountable         for    all

quantities of contraband with which he was directly involved

and, in the case of a jointly undertaken criminal activity, all

reasonably foreseeable quantities of contraband that were within

the scope of the criminal activity that he jointly undertook.”

U.S. Sentencing Guidelines Manual § 1B1.3 cmt. n.2 (2013).                              The

                                            9
Government    must     prove    the    drug    quantity      attributable         to     the

defendant by a preponderance of the evidence.                       United States v.

Carter, 300 F.3d 415, 425 (4th Cir. 2002).                    We conclude that the

Joneses    fail   to     affirmatively     show      that    the    court       relied    on

unreliable information.           Evidence in the record satisfied the

minimum threshold to warrant a base offense level of 34 under

USSG § 2D1.1(c)(3) (2013).

     The    Joneses      also   assert   various          errors    by    the    district

court in applying sentencing enhancements for possession of a

firearm    pursuant       to    USSG     § 2D1.1(b)(1),            role     adjustments

pursuant    to    USSG    § 3B1.1(a)     (2013),      and     criminal      livelihood

pursuant to USSG § 2D1.1(b)(14)(E).                  Dominique also challenges

the calculation of his criminal history.                       Our review of the

record reveals no clear error by the district court in these

determinations.        Accordingly, we discern no procedural error.

     Finally,      the    Joneses     assert       that    their    below-Guidelines

sentences were excessive because they were based on relevant

conduct found by the district court rather than the jury.                                The

Supreme Court made clear in Alleyne, however, that its holding

“does not mean that any fact that influences judicial discretion

must be found by a jury.               We have long recognized that broad

sentencing    discretion,       informed      by    judicial       factfinding,        does

not violate the Sixth Amendment.”                    133 S. Ct. at 2163; see

United States v. Smith, 751 F.3d 107, 117 (3d Cir.) (“Alleyne

                                         10
did   not   curtail    a   sentencing         court’s   ability       to   find    facts

relevant in selecting a sentence within the prescribed statutory

range.”), cert. denied, 135 S. Ct. 383 (2014), and cert. denied,

135 S. Ct. 497 (2014).

      Here, drug quantities found by the court did not alter the

statutory range established by the jury’s verdicts.                           Instead,

the judge-found facts determined the Guidelines range from which

to sentence the Joneses within the statutory range.                           Moreover,

the court was sensitive to the Joneses’ personal and criminal

backgrounds, their involvement in the conspiracy, their ages,

and the seriousness of the offense.                Importantly, the court did

not ignore their arguments for downward variances, but rather

considered    the     totality     of    circumstances        in    imposing      below-

Guidelines sentences.         The presumption that the sentences are

substantively reasonable has not been rebutted.

      For    these     reasons,         we    affirm    the        district     court’s

judgements    and    orders   of    forfeiture.         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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