                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4422


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SAMUEL DAVID MCQUEEN, III,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00275-NCT-1)


Submitted:   November 29, 2011             Decided:   December 19, 2011


Before NIEMEYER and     GREGORY,   Circuit    Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Lisa B. Boggs, Assistant
United   States  Attorney,  Greensboro,  North   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Samuel       David    McQueen,       III,   pled   guilty    to     unlawful

possession     of     a    firearm     by     a    convicted     felon,     18    U.S.C.

§ 922(g)(1)     (2006),       and    received       a    sentence   of    112     months

imprisonment.       McQueen appeals his sentence, contending that the

district court erred by applying the cross reference in U.S.

Sentencing     Guidelines         Manual    § 2K2.1(c)(1)(A)        (2010),       and   in

determining the amount of cocaine base (crack) attributable to

him under USSG § 2D1.1.            We affirm.

             While he was on probation for a prior drug conviction,

McQueen sold crack on three occasions and was arrested.                              In a

search of his apartment, investigators found a loaded stolen

pistol, small amounts of crack and marijuana, plastic baggies,

and a digital scale.              McQueen stated that the firearm was his,

that he had lived in the apartment for two or three months, and

that he sold a quarter-ounce of crack daily while living there.

In   the    presentence      report,       the    probation     officer   recommended

application of the cross reference in § 2K2.1(c)(1)(A) because

McQueen possessed the firearm in connection with another offense

—    drug   trafficking.          McQueen’s       base   offense    level      was   thus

calculated pursuant to § 2X1.1 and § 2D1.1.                     Because he admitted

selling approximately fifteen ounces of crack (425 grams) in the

preceding two months, the probation officer recommended a base

offense level of 32, and a 2-level increase for possession of a

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firearm during the offense.       USSG § 2D1.1(c)(4), (b)(1).          With a

3-level adjustment for acceptance of responsibility, McQueen’s

total offense level was 31.       He was in criminal history category

III, which resulted in a recommended advisory Guidelines range

of 135-168 months, reduced to 120 months, the statutory maximum

for the § 922(g) offense.      See USSG § 5G1.1(a).

            McQueen    disputed      the   application     of    the    cross

reference, and further argued that, even if it was applicable,

he should be held responsible for no more than the crack he

possessed on the day he was arrested.             At sentencing, McQueen

conceded that an enhancement under § 2K2.1(b)(6) for possession

of the firearm in connection with another felony offense would

be correct in his case.        He also conceded that the Guidelines

directed application of the cross reference in subsection (c)(1)

if it yielded a higher offense level, as it did in his case.

            The district court applied the cross reference, but

held McQueen responsible for only the quantity he sold during

the month he possessed the firearm.             The court recomputed the

base offense level at 30 and the total offense level at 29.                The

revised   Guidelines   range   was    108-120    months.    After      hearing

argument concerning the sentence and considering the 18 U.S.C.

§ 3553(a)    (2006)    sentencing     factors,    the    court   imposed    a

sentence of 112 months imprisonment.



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             A    sentence       is    reviewed      for    reasonableness             under      an

abuse of discretion standard, which requires consideration of

both   the        procedural         and     substantive        reasonableness              of     a

sentence.         Gall     v.   United       States,      552   U.S.      38,     51    (2007).

Failing     to     properly          calculate      the    Guidelines           range       is     a

significant procedural error.                      Id.     Generally, we review the

district court’s interpretation of a statute de novo.                                       United

States v. Amaya-Portillo, 423 F.3d 427, 430 (4th Cir. 2005).                                      In

this case, no error occurred in the district court’s application

of   the   cross        reference.          Application      Note       14(B)     to    § 2K2.1

states that, when the other offense is a drug offense and the

firearm      is     found       in     close       proximity       to     drugs        or    drug

paraphernalia, “application of subsections (b)(6) and (c)(1) is

warranted because the presence of the firearm has the potential

of   facilitating         another       felony      offense     or      another        offense,

respectively.”          The firearm was found in a kitchen cabinet where

McQueen kept drugs.                  McQueen conceded that subsection (b)(6)

applied.          The     district         court    correctly       applied       the       cross

reference     in    subsection         (c)(1)(A)         because     it      resulted        in    a

greater offense level, as directed by the Guidelines commentary.

             The district court’s determination of the quantity of

drugs attributable to a defendant is a factual question reviewed

for clear error.            United States v. Kiulin, 360 F.3d 456, 461

(4th   Cir.       2004).         McQueen       contends      that       no    evidence           was

                                               4
presented to the district court from which it could calculate

the quantity of crack he distributed before his arrest.                                     In

fact, the district court relied on McQueen’s statement to the

police after his arrest, in which he stated that he sold one-

quarter ounce of crack per day for two months.                             When the amount

of drugs seized “does not reflect the scale of the offense, the

court   shall           approximate         the       quantity      of    the     controlled

substance.”         USSG § 2D1.1 cmt. n.12.                 To make the determination,

“the court may consider . . . similar transactions in controlled

substances         by     the    defendant[.]”              Id.      Thus,      the    court’s

determination that McQueen was responsible for 212.7 grams of

crack was not clearly erroneous.

              We        therefore    affirm           the   sentence      imposed     by    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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