                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-4550


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DONNELL COPPEDGE,

                Defendant - Appellant.



                             No. 10-4764


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DONALD JUNIOR COPPEDGE, a/k/a Droopy, a/k/a Droop,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:09-cr-00054-F-1; 4:09-cr-00054-F-2)


Submitted:   July 23, 2012                  Decided:   July 30, 2012


Before GREGORY, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant Donald Junior Coppedge; Michael W.
Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel Hill, North
Carolina, for Appellant Donnell Coppedge.      Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Kristine L.
Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                  2
PER CURIAM:


                                             I.

       Donald Junior Coppedge was arrested by the state police on

June    3,    2009,      on   drug-related     charges.            A   grand     jury    later

returned a five-count superseding indictment against both Donald

and    Donnell      Coppedge,     alleging        various     drug-related           offenses.

While in custody, Donald made several unsolicited statements to

law enforcement officials.              Soon after he began to speak, he was

advised of his Miranda rights, orally agreed to waive them, and

continued to speak.              The following day, he continued to make

statements       to    law    enforcement;        he   was     again      advised      of   his

Miranda rights and waived them in writing.                             On July 21, 2009,

while    Donald        was    being     transported         from       state    to     federal

custody, he began speaking again to Detective Rose Edmonds of

the Greenville Drug Task Force and FBI Agent Joseph Lewis.                                  He

was    advised      of    his   Miranda      rights     a     third      time    and    signed

another written waiver.               After signing the form, Donald told the

detectives that he wanted to speak to his attorney, Derek Brown,

who    had    represented       him     in   relation         to   the    state       charges.

Detective Edmonds had Brown’s phone number programmed in his

cell phone and allowed Donald to call Brown.                               After speaking

with Brown, Donald said he wanted to talk to Detective Edmonds.

During       that     conversation,      Donald        made    several         incriminating


                                                  3
statements       about    his    past    involvement    in    the    purchase     and

distribution of crack cocaine and powder cocaine.

     Prior to trial, Donald moved to suppress the statements he

made to law enforcement officers on July 21, claiming that these

statements were involuntary under the Fifth Amendment and taken

in violation of his right to counsel under the Sixth Amendment.

The district court held a hearing and denied the motion.

     Also prior to trial, the Government filed notices of intent

to seek enhanced penalties against both Appellants 1 under 18

U.S.C.     §    841.     The    notice    listed    two      prior    felony      drug

convictions for Donald:             a 2005 conviction for the sale of a

controlled substance and a 1998 conviction for possession with

intent to sell and deliver a controlled substance.                        This notice

increased Donald’s maximum term of imprisonment on each count

from 20 to 30 years.

     The       jury    found    Donald   guilty    of   counts      two    and   five,

distribution of a quantity of cocaine base and possession with

intent to distribute a quantity of cocaine.                    It found Donnell

guilty of count four, possession with intent to distribute 50

grams or more of cocaine base and aiding and abetting.




     1
        While  the  Government filed  notices against                            both
Appellants, only Donald challenges the enhancement to                            this
Court.


                                             4
      Donald’s         presentence         report       (“PSR”)     found       that    he     was

accountable for more than 6.9 kilograms of cocaine base and 2.7

kilograms of cocaine. Three offense levels were added for his

role as a manager or supervisor.                         Two levels were also added

because the district court found that he attempted to obstruct

justice with false testimony he gave at the suppression hearing.

The   PSR    further        noted       that       Donald     had    two       previous       drug

convictions, making him a career offender.                          With a total offense

level of 43 and a criminal history category of VI, Donald’s

guidelines range was 360 months’ imprisonment.                            He was sentenced

to two concurrent 240-month sentences.

      At his own sentencing hearing, Donnell challenged several

factual findings in the presentence report.                              The court held a

hearing and permitted the parties to call witnesses; after a law

enforcement        officer          testified,          the      court      indicated         the

difficulty        it     would      have      in    determining          the    drug      weight

attributable to Donnell.                   J.A. 1153 (“[This is] an absolutely

impossible task.”).             It was also considering whether to impose a

firearm     and        leadership       role       enhancement.            Defense      counsel

requested     a        moment     to    speak       with      his   client,       and        after

conferring with Donnell said, “[Donnell] would be willing to

stipulate     as       to   the     applicability           of    the    firearm       and    the

leadership role if the Government was willing to agree as to the

relevant    conduct         being      that    which     the     jury    found,        the    73.5

                                                    5
grams.”     J.A. 1156.       The Government agreed to the stipulation.

The   court    conducted     a   brief    colloquy        with   the    Appellant    to

ensure he understood what the stipulation meant.                       The sentencing

guidelines range was then recalculated based on the agreed-upon

facts, yielding a range of 168 to 210 months’ imprisonment.                         The

court again confirmed that Donnell withdrew all of his pro se

motions and objections and then granted the request that the PSR

be modified to reflect the revised calculations.                         Donnell was

then sentenced to 198 months.            Both Appellants timely appealed.



                                         II.

      Donald and Donnell Coppedge make five arguments on appeal,

contending that the district court (1) erred in denying Donald’s

motion to suppress the statements he made on July 21, 2009;

(2) improperly applied the career offender enhancement and the

§ 841     statutory      maximum    sentence         in    calculating       Donald’s

sentencing guidelines range; (3) attributed an incorrect drug

weight    to   Donald;     (4)   erroneously        failed    to   apply    the   Fair

Sentencing Act to Donald’s sentence; and (5) improperly applied

the managerial enhancement to Donald.

      We hold that the district court did not err in denying

Donald’s    motion    to   suppress      nor   in    its    sentencing     of   either

Appellant.     We therefore affirm the convictions and sentences.



                                               6
                                              A.

       The Appellants first argue that the district court erred in

denying Donald’s motion to suppress the inculpatory statements

he made to law enforcement officials on July 21, 2009.                                     In

reviewing      a     motion   to    suppress,          this    Court    reviews     “factual

findings for clear error and legal conclusions de novo.”                                United

States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009).                                When the

district court denies the motion, the evidence is reviewed “in

the light most favorable to the Government.”                            United States v.

Green, 599 F.3d 360, 375 (4th Cir. 2010).

       The     Fifth       Amendment     protects         the        right    against    self

incrimination.          In Miranda v. Arizona, the Supreme Court held

that      because          custodial      interrogations               work      “inherently

compelling         pressures”      on   the    person         being    interrogated,      the

police must inform him that he has the right to remain silent

and to the presence of an attorney.                            384 U.S. 436, 467, 444

(1966).       However, the defendant may waive these rights so long

as he does so “knowingly and voluntarily.”                             North Carolina v.

Butler, 441 U.S. 369, 373 (1979).                      “Knowing” requires the waiver

to be made with “full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon

it.”         Moran    v.    Burbine,     475       U.S.       312,    421     (1986).     The

voluntariness prong requires that the waiver be “the product of

a free and deliberate choice rather than intimidation, coercion,

                                                   7
or deception.”          Id.       The determination of whether a waiver is

valid is based on the “totality of the circumstances surrounding

the interrogation.”           Id.

      The         Appellant       first     disputes          the     district       court’s

determination that he was ever informed of his Miranda rights.

See Br. of Appellant at 38, 39.                        The district court, however,

found that Donald was read his rights by the officers prior to

each of his statements.                   J.A. 169, 170, 171.               These factual

findings are based on the district court’s hearing and assessing

the credibility of the witnesses -- both Donald, who testified

in his own defense, and the investigating officers.                               J.A. 168.

Because Donald makes no argument as to why the district court’s

factual findings should be rejected but simply asserts that he

was never read his Miranda rights, we reject this argument.

      Donald next argues that the waiver of his Miranda rights

was   not    knowing        and   voluntary.           Several      facts   noted    by   the

district court belie this contention.                          On each of the three

occasions     that     he     spoke   to    the    police,       Donald     was    read   his

rights      and    waived     them    orally      or    in    writing.       On    the    last

occasion, when he gave the most inculpatory statements, he spoke

only after he called his attorney from a detective’s cellular

phone.        The      district       court    further         considered         Coppedge’s

personal     characteristics,          including        his    “familiarity        with   the

criminal          justice     system,        the        setting       of    the      various

                                                   8
‘interviews,’ [and] the fact that each was initiated by Coppedge

himself or at his request . . . .”                  J.A. 173.         Finally, the

court noted the fact that Donald repeatedly told law enforcement

that he wished to cooperate with them.                  Given these facts, we

hold   that     the   district   court    did     not   err    in   finding   that

Donald’s waiver was knowing and voluntary.

                                        B.

       Donald    also   argues   that    the     district     court    incorrectly

calculated his sentence by erroneously finding that one of his

prior convictions was a felony.              Whether a prior conviction is a

felony for purposes of the career offender sentencing guidelines

or a § 841 enhancement is a question of law this Court reviews

de novo.        United States v. Abu Ali, 528 F.3d 210 (4th Cir.

2008).

       Under the federal sentencing guidelines, a defendant is a

“career offender” if, inter alia, he has “at least two prior

felony convictions of either a crime of violence or a controlled

substance offense.”       U.S.S.G. § 4B1.1(a).           The term “controlled

substance offense” is later defined as “an offense under federal

or state law, punishable by imprisonment for a term exceeding

one year . . . .”       Id. § 4B1.2(b).          Similarly, if the Government

seeks a sentencing enhancement under § 841(b)(1)(C), then if it

proves the defendant was convicted of “a prior conviction for a

felony drug offense,” the statutory maximum is thirty years’

                                             9
imprisonment.       21    U.S.C.    §   841(b)(1)(C).       A    “felony   drug

offense” likewise requires that the offense carry a maximum term

that exceeds one year of imprisonment.                  Carachuri-Rosendo v.

Holder, 130 S. Ct. 2577, 2581-83 (2010).

      Donald first argues that one of the convictions the PSR

relied on in finding that he was a career offender was not a

felony.     On October 12, 1998, Donald pled guilty to possession

with intent to sell and deliver cocaine in Wayne County Superior

Court in North Carolina.          J.A. 1192.    He received a 6 to 8 month

sentence.     Id.       The Government concedes that the 1998 Wayne

County conviction can no longer count as a felony for sentencing

purposes in light of this Court’s decision in United States v.

Simmons, 649 F.3d 327 (4th Cir. 2011) (en banc).                 Nevertheless,

the   Government    urges     that      this    did   not   affect    Donald’s

guidelines calculation or sentence, and thus he has no basis for

relief.

      Donald’s presentence report added 2 criminal history points

as a result of this conviction pursuant to U.S.S.G. § 4A1.1(b).

His criminal history points totaled 16, establishing a criminal

history category of VI.            But the 2 points added to Donald’s

criminal history as a result of the 1998 conviction would have

been added even if the PSR had not classified that offense as a

felony:     those   2    points     were   added      pursuant   to   U.S.S.G.

§ 4A1.1(b).     That section states, “Add 2 points for each prior

                                           10
sentence of imprisonment of at least sixty days not counted in

(a).”     U.S.S.G. § 4A1.1(b).                Because Donald was sentenced to 6

to 8 months’ imprisonment on that conviction, the same 2 points

would     have        been    added     and    Donald    still        would    have     been

classified       as    a     category    VI   offender.         With    respect    to   the

computation of the offense level, the PSR did apply the career

offender enhancement and initially set the offense level to 34.

See U.S.S.G. § 4B1.1.                   However, § 4B1.1 notes that it only

applies “[i]f the offense level for a career offender from the

table    in    this     subsection       is    greater    than    the    offense      level

otherwise applicable . . . .”                     Id. § 4B1.1(b).         When the PSR

calculated the offense level based on the particular facts of

the     case     --    the     base     offense    level,       the    managerial       role

enhancement, and the obstruction of justice enhancement -- the

offense level came to 43.                Thus as the PSR noted, “in that the

offense level calculated above is greater than the offense level

determined by 4B1.1, 34, the higher offense level is utilized.”

The PSR therefore correctly calculated the Appellant’s guideline

sentence.

      With respect to the application of § 841’s increase to the

statutory      maximum        sentence,       Donald    makes    the    same    argument,

contending that the 1998 Wayne County offense was not a felony

conviction.           The Government notes that while Donald challenges

one of his two felony convictions, he does not contest the other

                                                  11
one.    In June 2005 Donald was convicted of the sale or delivery

of a Schedule II controlled substance in Greene County Superior

Court in North Carolina.      This conviction is punishable by more

than a year in prison, and Donald was sentenced to fifteen to

eighteen months’ custody.      Thus, the enhancement did apply and

the statutory maximum was properly calculated.

                                  C.

       Donald next challenges the drug weight attributed to him by

the district court.     The court attributed 7 kilograms of cocaine

base and 2 kilograms of cocaine to him.          Sentencing issues are

reviews under an abuse-of-discretion standard, “which translates

to   review   for   ‘reasonableness.’”      United   States   v.   Mendoza

Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).            With respect to

drug weight in particular, this Court reviews that question “for

clear error.”       United States v. Slade, 631 F.3d 185, 188 (4th

Cir. 1999).

       Donald argues that “[t]he bulk of this weight was testified

to solely by law enforcement officers testifying as to what they

were told by cooperating witnesses or defendants, all of whom

had signed plea agreements.”      Br. of Appellant 45.        But this is

simply not true:      At trial, several other individuals testified

as to Donald’s activities in the drug trade.            James Hart, for

example, testified that he was addicted to crack cocaine and

that he bought “a lot” of it from Donald, one of his regular

                                       12
suppliers, over the course of several years.                              John Mack Smith

testified    that       he    spent    his    entire          weekly   paycheck    on   crack

cocaine and that he often purchased from Donald and Donnell.

Jason Kelley told the court that he began to sell drugs to

Donald in the early 2000s.               He sold crack cocaine to Donald once

or twice a week in an amount between one and two ounces for

several years.          These witnesses all corroborate the testimony of

the law enforcement officers indicating that Donald was involved

in   the   sale    of    a    large    quantity          of    drugs   over   a   period   of

several    years.         Because      the        Appellant      “bears    the    burden    of

establishing that the information relied upon by the district

court . . . is erroneous,” Slade, 631 F.3d at 188, and his

assertions purporting to establish the erroneous nature of the

testimony      are      inaccurate,          we     affirm       the    district    court’s

finding.

                                              D.

      Donald      goes       on   to   assert       the       constitutionality     of     his

sentence, ostensibly claiming that the district court’s failure

to apply the Fair Sentencing Act (“FSA”) violated the Eighth

Amendment. 2      This Court reviews issues of law de novo.                             United

States v. Kellam, 568 F.3d 125, 132 (4th Cir. 2009).


      2
       While the Appellants’ brief titles this section “The
district court erred in imposing an enhanced sentence . . .
constituted cruel and unusual punishment and a violation of due
(Continued)
                                                    13
      The FSA increased the quantity of crack cocaine necessary

to    trigger       certain        mandatory           minimums            under      21         U.S.C.

§ 841(b)(1).        Pub. L. No. 111-220, 124 Stat. 2372.                              The statute

was signed into law on August 3, 2010, see id.; Donald, however,

was sentenced on July 8, 2010.                   This Court has already held that

the FSA does not apply retroactively.                           United States v. Bullard,

645   F.3d   237,        248-49    (4th    Cir.        2011)          (“We    agree     [with      the

Government]       and     join       all   of        our       sister        circuits       to     have

addressed the issue in holding that the Savings Statute does

indeed    preclude        retroactive       application               of     the    FSA.”).         We

therefore reject this claim of error.

                                                E.

      Finally,           Donnell       challenges               the          district        court’s

application of the managerial enhancement.                              With respect to the

standard     of   review,      Donnell      argues             that    Olano’s       four-pronged

plain    error    test     should      apply:              “Because        trial     counsel       for

defendant Donnell Coppedge interposed no objection to the role

enhancement . . . the plain error standard applies.”                                         Br. of

Appellant     60.         To   the    contrary,            Donnell         did     object    to    the

enhancement;        in    court,       however,           he     chose        to    withdraw       the



process,” there is no actual argument that the sentence was
unconstitutional.   Rather, it argues only that the FSA should
retroactively   apply   to  his  sentence   to avoid  “serious
constitutional problems.” Br. of Appellant 56.



                                                     14
objection       and     stipulated       to     the        applicability        of    the

enhancement.          As the Olano Court noted, “Waiver is different

from forfeiture.         Whereas forfeiture is the failure to make the

timely    assertion       of    a    right,     waiver        is     the     intentional

relinquishment or abandonment of a known right.”                           United States

v.    Olano,     507    U.S.     725,    733        (1993).          Because     Donnell

affirmatively     waived       his   objection,       it    is     not   reviewable    on

appeal.     United States v. Claridy, 601 F.3d 276, 284 n.2 (4th

Cir. 2010).



                                         III.

      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.                              For

the   reasons    discussed      above,    we    affirm       the    district     court’s

decision.


                                                                                AFFIRMED




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