                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4281
BILLY T. JOHNSON,
               Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4358
DAVIDE HUDSON,
             Defendant-Appellant.
                                       
           Appeals from the United States District Court
      for the Southern District of West Virginia, at Beckley.
               Robert C. Chambers, District Judge.
                           (CR-02-140)

                      Submitted: April 23, 2004

                       Decided: May 18, 2004

      Before MOTZ, TRAXLER, and KING, Circuit Judges.



Affirmed in part, dismissed in part by unpublished per curiam opin-
ion.
2                     UNITED STATES v. JOHNSON
                             COUNSEL

Matthew B. Tully, LAW OFFICE OF MATTHEW B. TULLY,
Hunter, New York; Patricia A. Kurelac, KURELAC LAW OFFICES,
Moundsville, West Virginia, for Appellants. Charles T. Miller, Acting
United States Attorney, Stephanie L. Haines, Assistant United States
Attorney, Huntington, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Billy T. Johnson pled guilty to one count of aiding and abetting in
the distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2000) and 18 U.S.C. § 2 (2000). His co-defendant, Davide Hudson,
entered a guilty plea to one count of distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2000). They timely appeal.

   Counsel for both Johnson and Hudson have filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), raising several potential
issues, but concluding that there are no meritorious issues on appeal.
Hudson filed a pro se supplemental brief challenging the district
court’s calculation of relevant conduct. Johnson declined to file a pro
se supplemental brief. Finding no reversible error, we affirm.

   In the Anders brief, Johnson contends that the district court erred
by refusing to grant him a two-point reduction for being a minor par-
ticipant in the conspiracy, pursuant to United States Sentencing
Guidelines Manual § 3B1.2 (2002), because he was nothing more
than Hudson’s low-level employee.

   The standard of review for factual determinations, such as whether
the appellant’s conduct warrants a minor-role sentencing reduction, is
                       UNITED STATES v. JOHNSON                        3
clear error. United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.
1989). Because Johnson admittedly sold drugs as a member of the
conspiracy, we conclude that the district court properly determined
that Johnson was not a minor participant in the conspiracy. United
States v. Brooks, 957 F.2d 1138, 1149 (4th Cir. 1992). Accordingly,
we affirm the district court’s denial of the role reduction. Daughtrey,
874 F.2d at 218.

   Johnson also contends that the district court erred by denying his
request for a downward departure pursuant to USSG § 4A1.3, on the
grounds that his criminal history category substantially over-
represented the seriousness of his prior record. However, because
there is no doubt that the court understood its authority to depart and
simply declined to do so, the district court’s refusal to depart below
the guideline range is not reviewable on appeal. United States v. Carr,
271 F.3d 172, 176-77 (4th Cir. 2001). Accordingly, we dismiss this
portion of the appeal.

   Hudson contends that because he pleaded guilty to .72 grams of
cocaine base, the amount of drugs attributable to him at sentencing is
limited to less than five grams of cocaine base under 21 U.S.C.
§ 841(b)(1)(c) (2000). This argument is essentially an attempt to chal-
lenge the sentence under Apprendi v. New Jersey, 530 U.S. 466, 490
(2000) (holding that except for fact of prior conviction, any fact
increasing penalty beyond statutory maximum must be submitted to
jury and proven beyond reasonable doubt). However, Apprendi is
inapplicable to this case, as Hudson pleaded guilty, and his twenty-
year sentence did not exceed the statutory maximum under
§ 841(b)(1)(C).

   In his pro se supplemental brief, Hudson contends that the district
court erred in calculating relevant conduct, stating that the drug trans-
actions attributed to him were not connected to the crime of convic-
tion, and arguing that the testimony at sentencing was unreliable. The
district court’s drug quantity determination is reviewed for clear error.
United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). In determin-
ing relevant conduct, the district court may consider any relevant and
reliable evidence before it, including acquitted or uncharged crimes
and hearsay. United States v. Bowman, 926 F.2d 380, 381-82 (4th Cir.
1991); United States v. Mullins, 971 F.2d 1138, 1144-46 (4th Cir.
4                     UNITED STATES v. JOHNSON
1992); United States v. Williams, 880 F.2d 804, 805 (4th Cir. 1989).
The Government has the burden of establishing the amount of drugs
used for sentencing calculations by a preponderance of the evidence.
United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). After careful
review of the record, we defer to the district court’s findings that the
testimony at sentencing was reliable, and we agree that the Govern-
ment proved the disputed relevant conduct by a preponderance of the
evidence. Accordingly, we find no reversible error. Fletcher, 74 F.3d
at 55.

   Finally, we decline to consider Hudson’s claim that his counsel’s
actions in regards to the calculation of relevant conduct amounted to
ineffective assistance because counsel’s ineffectiveness is not conclu-
sively shown on the face of the record. United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999) (noting that ineffective assistance
of counsel claims generally should be raised by motion under 28
U.S.C. § 2255). As stated above, the district court correctly deter-
mined the relevant conduct attributable to Hudson. Moreover, the
inclusion of relevant conduct at sentencing does not violate § 841 or
the rule in Apprendi. Thus, Hudson has not shown he was prejudiced
by counsel’s actions in these matters. Strickland v. Washington, 466
U.S. 688, 694 (1984).

   In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Johnson’s and Hudson’s convictions and sentences. This
court requires that counsel inform their clients, in writing, of their
right to petition the Supreme Court of the United States for further
review. If a client requests that a petition be filed, but counsel
believes that such petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                                AFFIRMED IN PART;
                                                DISMISSED IN PART
