                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5034


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DORIS FOSTER,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-DLH-7)


Submitted:   October 27, 2011             Decided:   November 4, 2011


Before WILKINSON, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark A. Yurachek, THE LAW OFFICES OF MARK ALLEN YURACHEK, LLC,
Atlanta, Georgia, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A federal jury convicted Doris Foster of conspiracy to

possess with intent to distribute cocaine base (“crack”), in

violation    of    21     U.S.C.       §    846      (2006).        The     district    court

sentenced Foster to 292 months of imprisonment and Foster now

appeals.    For the reasons that follow, we affirm.

            Foster first argues that the district court erred in

calculating the quantity of crack attributable to her under the

advisory Guidelines.             We review a sentence for reasonableness,

applying     an    abuse    of     discretion            standard.          Gall v.    United

States,    552    U.S.     38,    51       (2007);       see   also    United    States      v.

Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct.

290   (2009).        In     so     doing,           we    examine     the    sentence       for

“significant procedural error,” including “failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)     [(2006)]      factors,            selecting      a      sentence   based       on

clearly erroneous facts, or failing to adequately explain the

chosen sentence.”         Gall, 552 U.S. at 51.

            Moreover,        “[t]he          [g]overnment           must     prove     by    a

preponderance       of     the     evidence              the   amount       of   controlled

substances       attributable      to       a    defendant.”           United    States     v.

Carter, 300 F.3d 415, 425 (4th Cir. 2002).                              In reviewing the

district court’s calculations under the Guidelines, we “review

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the district court’s legal conclusions de novo and its factual

findings for clear error.”                  United States v. Manigan, 592 F.3d

621, 626 (4th Cir. 2010) (internal quotation marks and citation

omitted).        We will “find clear error only if, on the entire

evidence, we are left with the definite and firm conviction that

a mistake has been committed.”                     Id. at 631 (internal quotation

marks and citation omitted).

            Under the Guidelines in effect at the time of Foster’s

sentencing, the applicable offense level was thirty-six if the

defendant was held responsible for more than 1.5 kilograms but

less     than    4.5      kilograms       of       crack.      See      U.S.   Sentencing

Guidelines       Manual       (“USSG”)         § 2D1.1(a)(5),           (c)(2)    (2009).

Furthermore, in a drug conspiracy, the defendant is accountable

for the quantity of drugs with which she is directly involved

and “all reasonably foreseeable quantities of contraband that

were    within     the      scope    of     the     criminal      activity     that    [she]

jointly undertook.”           USSG § 1B1.3(a), cmt. n.2; see also United

States    v.     Lamarr,      75     F.3d      964,    972     (4th     Cir.   1996)    (“A

defendant’s        Base      Offense        Level      under      the    Guidelines      is

determined by the amount of drugs ‘reasonably foreseeable to

[her]     within       the     scope      of       [her]     unlawful      agreement.’”)

(citations omitted).                We have thoroughly reviewed the record

and conclude that the district court did not err in calculating

the     quantity       of    crack     attributable          to     Foster     under    the

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Guidelines       and,    therefore,       did      not    err    in     calculating      the

advisory Guidelines range.

            Foster next argues that the district court should have

applied proposed Amendment 750 to the Guidelines, which will

lower the offense levels for offenses involving crack and is to

take effect absent contrary action by Congress on November 1,

2011.      The    Fair       Sentencing   Act      (“FSA”)       became      effective   on

August 3, 2010, and raised the threshold amounts of crack that

trigger the statutory minimums for convictions under 21 U.S.C.

§ 841(a) (2006).             See 21 U.S.C.A. § 841(b) (West Supp. 2011).

In response to the FSA, the Sentencing Commission on April 28,

2011, proposed Amendment 750 to the Guidelines, which will lower

the offense levels applicable to crack offenses and will apply

retroactively, to become effective on November 1, 2011.

            However, regardless of pending Guidelines amendments,

a sentencing court “shall use the Guidelines Manual in effect on

the date the defendant is sentenced.”                     USSG § 1B1.11(a) (2010).

Here,   Foster     was       sentenced    on      September       22,    2010,    and    the

district court employed the Guidelines Manual in effect at that

time.      Therefore,          the    court       correctly      calculated       Foster’s

offense    level.        While       Amendment      750    may    apply      to   Foster’s

conviction after its effective date, “[i]t is . . . for the

district    court       to    first   assess       whether       and    to   what   extent

[Foster’s] sentence may be thereby affected, and that court is

                                              4
entitled to address this issue either sua sponte or in response

to a motion by [Foster].”                   United States v. Brewer, 520 F.3d

367,     373    (4th     Cir.       2008)     (refusing        to    apply     retroactive

amendment in the Guidelines on direct appeal).

               Accordingly, we affirm the judgment of the district

court.     However, this decision is rendered without prejudice to

Foster’s right to pursue a sentence reduction in the district

court    pursuant      to     18    U.S.C.        § 3582(c)(2)       (2006).      We    deny

Foster’s       motions      to     file     pro       se   supplemental      briefs.     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.



                                                                                  AFFIRMED




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