                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4449


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ANTHONY TREVINO PATE,

                  Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:06-cr-00478-NCT-3)


Submitted:    April 13, 2009                  Decided:   May 4, 2009


Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


C. Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Anthony Trevino Pate was charged with conspiring to

distribute      fifty    grams        or       more    of     a    mixture      or    substance

containing a detectable amount of crack cocaine, in violation of

21 U.S.C. § 846 (2006) (Count One), distribution of .2 grams of

crack cocaine on May 9, 2005 (Count Two), distribution of .3

grams of crack cocaine on October 19, 2005 (Count Thirteen), and

distribution of 7.9 grams of crack cocaine on November 1, 2005

(Count Fourteen), all in violation of 21 U.S.C. § 841(a)(1),

(b)(1) (2006).         The jury convicted Pate of all four counts and

found the drug amounts as alleged except for Count One.                                       With

respect to Count One, the jury found Pate guilty of conspiring

to distribute 12.6 grams of crack cocaine.                               At sentencing, the

district court determined Pate was responsible for 50.4 grams of

crack cocaine and sentenced him to 212 months’ imprisonment.

           On     appeal,          Pate    first       argues          that   his    conspiracy

conviction    must      be    overturned            because       he    was   charged    with   a

single   conspiracy          but     the       Government’s            evidence     established

multiple conspiracies.               A variance occurs where the evidence

presented at trial differs materially from the facts alleged in

the indictment.         United States v. Kennedy, 32 F.3d 876, 883 (4th

Cir. 1994).      “Whether there is a single conspiracy or multiple

conspiracies, . . . is a question of fact for the jury and we

must   affirm    its     finding          of    a     single      conspiracy         unless   the

                                                 2
evidence, taken in the light most favorable to the government,

would not allow a reasonable jury to so find.”                             United States v.

Harris,    39       F.3d   1262,       1267    (4th Cir.        1994)      (quoting        United

States v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986)).                                   Also, a

reversal    is      proper    on     variance      grounds          only   if    the     variance

infringed    the      appellant’s        substantial           rights      and    resulted    in

actual prejudice.             Kennedy, 32 F.3d at 883.                       To show actual

prejudice    from      a     multiple     conspiracy          variance,         the    appellant

must show that there were so many defendants and conspiracies

before the jury as to make it likely the jury would transfer

evidence of the guilt of the members of one conspiracy to a

defendant       who    was     not     involved          in   that     conspiracy.           Id.

            We have reviewed the record and determine that the

evidence at trial, viewed in the light most favorable to the

Government, fully supports the jury’s verdict on the conspiracy

count.      Moreover,            the    fact       that       the     jury       asked    during

deliberations whether Pate could be convicted of conspiring with

persons not named in the indictment and its finding of less than

the fifty grams of crack cocaine alleged in Count One does not

establish       a    fatal    variance.            See    United       States      v.     Powell,

469 U.S. 57, 64-65, 67 (1984).                     Additionally, because he stood

trial alone, Pate cannot establish actual prejudice from any

variance    between        the     indictment       and       the    evidence.           Kennedy,

32 F.3d at 884 (citing United States v. Anguiano, 873 F.2d 1314,

                                               3
1318 (9th Cir. 1989).                 Accordingly, Pate’s variance claim is

without merit.

             Pate         also        challenges      the      district           court’s

determination       of     the    drug    amounts     attributable         to    him    for

sentencing.         The    district      court’s    determination          of    the   drug

amount for which a defendant is responsible is a factual issue

reviewed for clear error.               United States v. Lamarr, 75 F.3d 964,

972 (4th Cir. 1996).             Accordingly, this court will reverse only

if “left with the definite and firm conviction that a mistake

has been committed.”             United States v. Stevenson, 396 F.3d 538,

542 (4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S.

564,   573   (1985)).            At   sentencing,    the    Government          need   only

establish the amount of drugs involved by a preponderance of the

evidence.     United States v. Cook, 76 F.3d 596, 604 (4th Cir.

1996).       This    court       will    afford     the    district    court       “broad

discretion    as     to    what       information    to    credit     in    making      its

calculations.”        Cook, 76 F.3d at 604 (citing United States v.

Falesbork, 5 F.3d 715, 722 (4th Cir. 1993) (internal quotations

omitted)).     A district court need only determine “that it [is]

more likely than not that the defendant was responsible for at

least the drug quantity attributable to him.”                       United States v.

Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (citing Cook, 76 F.3d

at 604 (emphasis in the original)).                   Our review of the record

leads us to conclude that Pate fails to demonstrate that the

                                            4
district court clearly erred in holding him accountable for 50.4

grams of crack cocaine.

           Accordingly, we affirm the judgment of the district

court.    We dispense with oral argument as 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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