                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                               JULY 12, 2010
                                 No. 09-12969                   JOHN LEY
                             Non-Argument Calendar                CLERK
                           ________________________

                        D. C. Docket No. 08-00257-CR-KD


UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                      versus

VUI VAN HO,
a.k.a. Long Hair,

                                                             Defendant-Appellant.


                           ________________________

                    Appeal from the United States District Court
                       for the Southern District of Alabama
                          _________________________

                                  (July 12, 2010)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:

      The United States charged Vui Van Ho with four counts of possession with

intent to distribute methamphetamine and one count of criminal forfeiture. A jury

convicted Defendant on one count of possession and acquitted Defendant on the

remaining counts. Defendant sold 6.2 grams of methamphetamine during the

transaction for which Defendant was convicted. During sentencing, the District

Court attributed 59.9 grams of methamphetamine to Defendant. We see no

reversible error; we affirm.

      Defendant was involved in selling methamphetamine to a confidential

informant. The first three transactions were supposed to be for methamphetamine

"ice" totaling 53.7 grams. The "drugs" sold during the first three transactions were

not what had been agreed upon; the police lab determined the substance contained

no methamphetamine. During the fourth transaction, Defendant provided 6.2

grams of methamphetamine.

      The presentence report recommended holding Defendant accountable for

53.7 grams of methamphetamine "ice" and 6.2 grams of methamphetamine. Using

these quantities, the presentence report assigned a base offense level of 32.

Defendant objected to culpability for drug quantity above the 6.2 grams of

methamphetamine that he had actually been convicted of possessing.



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      During the sentencing hearing, the United States presented two witnesses

who had not testified at trial. Both witnesses discussed their relationship with

Defendant's son. Defendant's son ran a drug ring and used Defendant for some

smaller transactions -- these smaller transactions were the focus of the testimony.

Defendant would act as a mule between his son and the witnesses on occasion, and

the witnesses testified on both the quantity and nature of the drugs that Defendant

carried.

      The District Court credited the witnesses' testimony that Defendant was a

drug go-between. The District Court did not credit the witnesses' testimony that

Defendant carried methamphetamine "ice"; it only attributed methamphetamine to

the Defendant. The District Court determined that Defendant was reasonably

capable of providing--and was culpable for--59.9 grams of methamphetamine. The

District Court calculated a base offense level of 26, which provides a base

guideline range of 63 to 78 months. Based in part on Defendant's refusal to admit

guilt in the face of video evidence, the District Court sentenced Defendant to 70

months.

      We review the District Court's determination of the quantity of drugs for

sentencing purposes for clear error. United States v. Zapata, 139 F.3d 1355, 1357

(11th Cir. 1998).



                                          3
        The District Court determined the quantity of methamphetamine that

Defendant was sentenced for based on the four transactions Defendant had with the

informant, even though Defendant was acquitted of the counts relating to three of

those transactions. A District Court may take acquitted conduct into account

during sentencing. United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.

2005). As long as the final sentence does not exceed the statutory maximum for

the convicted count, no constitutional violation is involved. Id.

        Application note 12 of the United States Sentencing Guidelines § 2D1.1 says

"[t]ypes and quantities of drugs not specified in the count of conviction may be

considered in determining the offense level." The note later goes on to say, "[i]f

the offense involved both a substantive drug offense and an attempt . . . the total

quantity involved shall be aggregated to determine the scale of the offense." Also,

"[i]f an offense involving an agreement to sell a controlled substance, the agreed-

upon quantity of the controlled substance shall be used to determine the offense

level . . . ."

        The District Court based the 59.9 gram drug quantity on the amount of

methamphetamine that Defendant attempted to sell to the confidential informant.

The District Court was also authorized to take into account the quantities to which

the witnesses testified. United States v. Frazier, 89 F.3d 1501, 1506 (11th Cir.



                                           4
1996)("In estimating the quantity of drugs attributable to a defendant, a court may

base its computation on evidence showing the average frequency and amount of a

defendant's drug sales over a given period of time").

        The record supports the District Court's calculation of 59.9 grams of

methamphetamine. Defendant's sentence was within the statutory range for the

count of conviction. Defendant asks us to overturn the District Court's credibility

determination on the two witnesses. "[W]e give great deference to the district

court's assessment of the credibility and evidentiary content of [witnesses's]

testimony." United States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995). "Because

appellate courts reviewing a cold record give particular deference to credibility

determination of a fact-finder who had the opportunity to see live testimony we do

not second guess the court's judgments." CBS Broad., Inc. v. EchoStar Commc'ns

Corp., 450 F.3d 505, 517 n.23 (11th Cir. 2006)(internal citation omitted). We see

no reason to second-guess the District Court's credibility determinations in this

case.

        AFFIRMED.




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