                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4151


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ANDRES MORALES,

                  Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 07-8902)


Submitted:    October 28, 2008              Decided:   December 1, 2008


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Joshua C. Hanks, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                On     November      13,    2007,     this     court          affirmed    Andres

Morales’s        conviction       and       sentence.         See        United     States      v.

Morales, 253 F. App’x 287 (4th Cir. 2007) (No. 07-4151).                                        On

June 9, 2008, the Supreme Court granted Morales’s petition for a

writ of certiorari, vacated this court’s judgment and remanded

to this court for further consideration in light of Gall v.

United      States,      128    S.    Ct.     586    (2007).        Having        reconsidered

Morales’s sentence in light of Gall and this court’s decisions

interpreting Gall, we find no reversible error.                                Accordingly, we

affirm.

                Andres Morales was convicted by a jury of one count of

conspiracy        to    distribute         methamphetamine,         in        violation    of   21

U.S.C.      §    846    (2000).         The    Presentence         Investigation          Report

recommended an offense level of forty-two, which included a drug

weight of between 9.92917 and 11.430 kilograms (net weight) as

well as enhancements for possession of a firearm, aggravated

role   in       the    offense,      and    obstruction       of    justice.         See     U.S.

Sentencing        Guidelines         Manual    (“USSG”)      §§    2D1.1(a)(3),           (b)(1),

(c)(2);     3B1.1(c);       3C1.1      (2006).         Morales          was    assessed    three

criminal        history        points,      placing     him        in     criminal        history

category II.            The resulting advisory Guidelines range was 360

months to life imprisonment.                        See USSG Ch. 5, Pt. A (2006)

(sentencing table).

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             While    Morales     agreed       with   the    probation    officer’s

calculations, he objected generally to the basis upon which they

were found.        The district court, however, overruled Morales’s

objections    to     the   drug   weight       and    enhancements     based    on   a

finding    that    they    were   supported      by    a    preponderance      of   the

evidence.      After discussing the relevant 18 U.S.C. § 3553(a)

(2006)    factors,     the   court    sentenced        Morales   to    360   months’

imprisonment.

             On appeal, Morales first contends that the district

court erred in admitting expert witness testimony.                        We review

the admission of expert testimony for an abuse of discretion.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).                        Before

permitting expert testimony, the district court must determine

that the testimony is both reliable and relevant and will assist

the trier of fact in understanding or determining a fact in

issue in the case.           See Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579, 592-93 (1993).

             Prior to his qualification as an expert witness, Minh

Dang testified that: he was employed for approximately ten years

as a forensic chemist with the Drug Enforcement Administration

(“DEA”);     he      received     a   Bachelor        of     Science     degree      in

biochemistry from California Polytechnic University and a Master

of Science degree in chemical toxicology from George Washington

University; he completed a nine month training course for the

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analysis      of    controlled         substances,          including       methamphetamine,

and     a    course      on       investigating        clandestine           methamphetamine

laboratories; during his term of employment with the DEA, he has

chemically analyzed substances to determine whether they contain

a    controlled      substance,         including       between       700     and    800    tests

specifically        involving          methamphetamine;         and     he    has    testified

approximately thirty times in prior criminal cases.

              Dang’s       testimony,         which     was    subjected        to    vigorous

cross-examination,             included       the     tests    used     as     well    as    the

protocols         performed       to    assure       accuracy.         His     inability      to

respond to some of the detailed questions proffered on cross-

examination is relevant to the weight of Dang’s testimony rather

than to its admissibility.                    See United States v. Moreland, 437

F.3d 424, 431 (4th Cir. 2006).                       Thus, we conclude the district

court       did    not     abuse        its    discretion        by     admitting          Dang’s

testimony.

              Morales      next        contends      that    several     of    the     district

court’s rulings on evidentiary issues were improper.                                 We review

a district court’s decision regarding the admission or exclusion

of     evidence      for      abuse      of    discretion.            United        States     v.

Lancaster, 96 F.3d 734, 744 (4th Cir. 1996).                           Such discretion is

abused      only    when      a   district     court     has    acted        “arbitrarily     or

irrationally.”           United States v. Moore, 27 F.3d 969, 974 (4th

Cir.    1994)      (internal        quotation        marks     and    citation        omitted).

                                                 4
However,      evidentiary           rulings          based        on      erroneous        legal

conclusions are “by definition an abuse of discretion.”                                  United

States v. Turner, 198 F.3d 425, 430 (4th Cir. 1999).

             The     evidence          presented         at     trial    established         that

Morales supplied methamphetamine to several distributors in the

southern     portion       of     West     Virginia.              On     one     occasion,     a

cooperating witness aided investigators by placing a monitored

call    to   Morales’s          cell    phone       in     an    effort     to    schedule     a

controlled buy.           The buy was ultimately scheduled, and a date

and location were appointed.                   Dannie Fraley, a co-conspirator,

arrived      at    the     chosen       location         in      Morales’s        girlfriend’s

vehicle.           Two    packages        of        what        was     determined      to     be

methamphetamine          were    retrieved          by   officers       from     the   vehicle.

Fraley testified that he was sent by Morales to execute the

deal.

             Morales       argues       that    the        district       court    erred     by:

(1) excluding        testimony          regarding          Fraley’s       niece’s      alleged

methamphetamine addiction; (2) admitting testimony from Fraley’s

girlfriend regarding whether Fraley would hide his drug use from

her; (3) admitting a photograph of the interior of Morales’s

girlfriend’s vehicle in which a child’s car seat was visible;

and (4) admitting testimony regarding Morales’s personal life.

He further argues that the district court erred in denying his

post-trial motion for a new trial in light of the cumulative

                                                5
effect of these errors.                   When viewed in the context of the

trial, the district court’s rulings were neither arbitrary nor

irrational.       Moreover, even if the rulings were erroneous, such

error would nevertheless be harmless in light of the evidence

adduced at trial to establish Morales’s guilt.

             Finally,        Morales      contends    that    the     imposition      of   a

sentence within the calculated Guidelines range is unreasonable.

When determining a sentence, the district court must calculate

the appropriate advisory Guidelines range and consider it in

conjunction with the factors set forth in 18 U.S.C. § 3553(a).

Gall, 128 S. Ct. at 596.                Appellate review of a district court’s

imposition       of    a    sentence,      “whether   inside,       just     outside,      or

significantly outside the Guidelines range,” is for abuse of

discretion.           Id.    at    591.      Sentences       within    the    applicable

Guidelines range may be presumed by the appellate court to be

reasonable.           United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007).

             The district court followed the necessary procedural

steps   in       sentencing         Morales,       appropriately           treating     the

Sentencing       Guidelines        as     advisory,   properly        calculating       and

considering the applicable Guidelines range, and weighing the

relevant     §    3553(a)         factors.        Furthermore,        we    may   presume

Morales’s sentence, which is at the low end of the applicable



                                              6
Guidelines          range    and      below      the      statutory          maximum,       to       be

reasonable.

               To     the    extent       Morales         continues         to    maintain       his

innocence       and     argue      that      his       objections      to        the    sentencing

enhancements         should     have      been         sustained,      the       district    court

properly       found    each       sentencing          factor    to    be    supported          by    a

preponderance of the evidence.                     See United States v. Morris, 429

F.3d    65,     72    (4th     Cir.    2005).            Morales’s      challenge          to    the

testimony      presented        at    sentencing          is    likewise         unavailing,         as

witness credibility is the sole province of the factfinder and

will     not    be     reassessed       on    appeal.            See    United          States       v.

Saunders, 886 F.2d 56, 60 (4th Cir. 1989).                              Thus, we conclude

that the district court did not abuse its discretion in imposing

the chosen sentence.

               Accordingly, we affirm the judgment of the district

court.        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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