                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-5079


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JASON YOUNG,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:08-cr-00240-LO-6)


Submitted:   January 7, 2010                 Decided:   March 22, 2010



                               No. 08-5111


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FARES ABULABAN, a/k/a Sameh,

                Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Liam O’Grady, District
Judge. (1:08-cr-00101-JCC-1; 1:08-cr-00240-LO-1)


Argued:   January 27, 2010               Decided:   March 22, 2010


Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and Catherine
C. BLAKE, United States District Judge for the District of
Maryland, sitting by designation.


Affirmed by unpublished opinion. Judge Blake wrote the opinion,
in which Chief Judge Traxler and Judge Agee joined.


ARGUED: Marvin David Miller, Alexandria, Virginia, for Appellant
Fares Abulaban.    David Brian Goodhand, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.   ON BRIEF:
Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio; Heather Golias,
LAW OFFICE OF MARVIN D. MILLER, Alexandria, Virginia, for
Appellants.   Dana Boente, United States Attorney, Lawrence J.
Leiser, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
BLAKE, District Judge:

      Fares       Abulaban     and     Jason      Young     pled    guilty       to    drug

conspiracy and related gun charges and were sentenced to total

terms of imprisonment of 232 months for Abulaban and 270 months

for Young.         Both appeal aspects of their sentencing; Abulaban

also appeals the denial of his motion to suppress a firearm

seized during a warrantless search of the automobile in which he

drove to the site of the supposed cocaine transaction. In fact

it   was    a    “reverse     sting”      operation.        For    the    reasons      that

follow, we affirm the rulings of the district court.



                                             I.

                                             A.

      In February 2008, agents of the Immigration and Customs

Enforcement        (“ICE”)    Division       of    the    Department      of     Homeland

Security        planned   a   “reverse       sting”       operation      in    which    ICE

undercover agent Tony Rodriguez played the role of a drug dealer

with cocaine connections in Columbia.                    Defendant Abulaban agreed

to   find   purchasers        for    20    kilograms      of   cocaine        which   Agent

Rodriguez was to have available for sale on February 15, 2008 in

Morgantown, West Virginia.                Defendant Young was to be one of the

buyers.

      Several meetings took place among Abulaban, Rodriguez, and

other co-conspirators or undercover agents prior to February 15,

                                             3
2008.      On February 7, 2008, Abulaban met with Rodriguez and

others to discuss arrangements for buyers to purchase the 20

kilograms of cocaine.       It was agreed that Abulaban would receive

some fee or percentage of the purchase price for his work, and

there was discussion about using vehicles, including his, to

pick up money or drugs.       Abulaban left that meeting in a silver

BMW   he   had   apparently   recently    purchased   (“the    BMW”).      On

February 14, 2008, Abulaban met with Agent Rodriguez and others

again, driving them in his BMW to Club Envy, the site of the

next day’s planned transaction, where he gave the agents a tour

of the Club including its entrances and exits before driving the

agents back to the lot where their car was parked.

      On   February   15,   2008,   Abulaban   initially    picked   up   the

agents in a different car to drive around and discuss the deal,

including Abulaban’s intention to take two of the kilos himself

to sell.     In the course of the discussion, Abulaban asked Agent

Rodriguez if he had his gun with him or had a gun.                      After

parking in front of the Morgantown Hotel, Abulaban entered the

hotel and later exited carrying a paper bag, which he handed to

Agent Rodriguez.       The bag contained approximately $40,000 in

banded cash.     Abulaban then drove the agents, with the money, to

Club Envy in his silver BMW.          Other conspirators arrived, also

with money, and eventually another undercover agent brought the

purported 20 kilograms of cocaine to the Club.             Once the “drugs”

                                      4
were placed in view, the conspirators were arrested.                                     Abulaban

and defendant Jason Young, one of the buyers, were among those

arrested.        While Abulaban did not have a gun on his person,

weapons were recovered from other persons arrested at the Club.

Following the arrests, agents searched Abulaban’s BMW and found

a loaded .380 caliber semi-automatic handgun in the driver’s

side map compartment.

                                                B.

      On   March       13,    2008,      a    federal         grand   jury    in    Alexandria,

Virginia, returned an indictment (08-CR-101) charging Abulaban,

Young, and others with conspiracy to distribute and possess with

intent to distribute both cocaine and ecstasy in violation of 21

U.S.C.     §§    841(a)(1)         and       846.         A    single-count         superseding

indictment returned June 19, 2008, narrowed the scope of the

conspiracy       and    did    not       name    Young.           A   separate       indictment

returned June 12, 2008 (08-CR-240), charged Abulaban, Young, and

others with conspiracy to possess with intent to distribute five

kilograms       or   more     of    cocaine,         in   violation      of    21    U.S.C.     §§

841(a)(1),       846,    and       860   (Count       One);       charged     Abulaban       with

possessing a firearm (the .380 caliber semi-automatic found in

his   BMW)      on     February       15,      2008       in    furtherance         of   a   drug

trafficking offense, in violation of 18 U.S.C. § 924(c) (Count

Two); and charged Young with using and carrying a firearm (a .38

caliber    Taurus       revolver)        on     February        15,   2008    during      and   in

                                                 5
relation to a drug trafficking offense, also in violation of 18

U.S.C. § 924(c) (Count Three).

       Prior    to    trial   Abulaban    moved       to   suppress   the   handgun

seized      from     his   BMW,   claiming     that    the   warrantless     search

violated the Fourth Amendment.                After an evidentiary hearing,

the district court found the search lawful, concluding that “the

officers had probable cause to search the BMW, as it was an

instrumentality of the drug conspiracy and thereby falls within

the vehicle exception to the warrant requirement.”                      J.A. 300.

Secondarily, the court concluded that the officers had probable

cause to believe the BMW was subject to forfeiture and that it

could be seized without a warrant.                 Accordingly, the motion to

suppress was denied. 1

       On July 12, 2008, Abulaban pled guilty to Counts One and

Two of the indictment in 08-CR-240 arising from the February 15,

2008       transaction      (conspiracy       to   possess     with    intent   to

distribute cocaine and possession of a firearm in furtherance of

a drug-trafficking offense); Young pled guilty to Counts One and

Three of the same indictment (the cocaine conspiracy and using

and carrying a firearm).           Neither had a written plea agreement,

       1
       This ruling was made by Judge James C. Cacheris in
connection with the 08-CR-101 indictment.  The § 924(c) charge
involving the handgun later became part of the 08-CR-240
indictment, assigned to Judge Liam O’Grady.      Judge O’Grady
adopted Judge Cacheris’s ruling. J.A. 353.



                                          6
although Abulaban and the government agreed he had reserved the

right to appeal the denial of his suppression motion.             Abulaban

also pled guilty, with a written agreement, to Count One of the

superseding indictment in 08-CR-101, which charged a conspiracy

to possess with intent to distribute ecstasy based on a meeting

with co-conspirator Mohammed Alazzam and an undercover agent in

March 2007 to plan the acquisition and sale to the agent of 2500

ecstasy pills at a price of $10 per tablet.           Abulaban was to be

paid as a broker for this sale, but it was never carried out.

On October 10, 2008, the district court sentenced Young to 210

months’ incarceration on Count One and 60 months consecutive on

Count Three. On October 30, 2008, the court sentenced Abulaban

to 172 months’ incarceration on Count One of both 08-CR-101 and

08-CR-240, to run concurrently, and 60 months consecutive on

Count Two of 08-CR-240.      This appeal followed. 2



                                   II.

                                   A.

     We   first   consider   whether     the   district   court   erred   in

denying Abulaban’s motion to suppress the gun found in his BMW.

     2
        Both Abulaban and Young filed notices of appeal and
briefed   their   respective   issues.     Their appeals  were
consolidated.   Prior to oral argument, however, because of a
change in counsel for Young, the appeals were deconsolidated.
Young’s claims will be resolved on the briefs.



                                    7
We review the court’s findings of fact for clear error and its

conclusions of law de novo.             United States v. Kelly, 592 F.3d

586, 589 (4th Cir. 2010).

       Abulaban argues that for the automobile exception to apply

the vehicle must be “readily mobile” and there must be “probable

cause to believe it contains contraband,” citing Maryland v.

Dyson, 527 U.S. 465, 467 (1999).               This is of course consistent

with precedent.       To the extent he suggests,               however, that the

car was no longer “mobile” because the agents had seized the

keys     and    arrested   Abulaban,         and   therefore     the    automobile

exception no longer applied, this suggestion has been rejected,

for reasons thoroughly and recently explained in Kelly, 592 F.3d

at 591.        The inherent mobility of the car, combined with the

lesser expectation of privacy in an automobile as compared to a

home or office, justify application of the exception even if the

police    have   control   over   the    automobile     at     the   time   of    the

warrantless search.        Id. at 590-91; see also United States v.

Brookins, 345 F.3d 231, 237-38 (4th Cir. 2003).

       Abulaban also argues that the agents lacked probable cause

to believe the BMW contained contraband, relying on testimony

from agents that they were not aware of any contraband in the

BMW after the bag of money was removed, and that they had not

seen   Abulaban     with   a   pistol.        There   was    ample     evidence   to

conclude, however, that Abulaban planned to receive a fee from

                                         8
the transaction and to take a portion of the drugs; it is simple

logic to find, as the district court did, that Abulaban intended

to use the BMW to transport his share of the money and the

cocaine away from Club Envy.                  Nor is there any dispute that he

had used the car to transport drug purchase money to the Club.

As the district court concluded, this case falls well within the

parameters set forth in United States v. Dickey-Bey, 393 F.3d

449, 457 (4th Cir. 2004), permitting the search of the car as an

instrumentality of the crime.                     In addition, as the government

argues,        examining      the     facts       from   the        standpoint    of    an

objectively reasonable police officer, there was probable cause

to believe Abulaban was concealing a gun in the BMW and perhaps

other evidence of the conspiracy.                     His question about whether

the agent had a gun, combined with the value of the purported

drugs    and     the   fact    that    other       co-conspirators        had    weapons,

supported a fair probability that Abulaban, who had no weapon on

his person, had concealed a weapon in his BMW.                            See Brookins,

345 F.3d at 235 (internal citation omitted).                          Further, the BMW

admittedly       had   been    used    to     transport      both     participants     and

money before the transaction at the Club.                       Thus, to the extent

the     question       is   distinct        from     whether        the   BMW    was   an

“instrumentality” of the drug conspiracy, we conclude the search

was     also    justified      by     probable       cause     to    believe     the   BMW



                                              9
contained      evidence      of   the   crime   or    contraband,       including   a

weapon. 3

                                          B.

       We     now    turn    to   Abulaban’s        challenge     to    his   within

Guidelines       sentence.        As    recently     explained,      now   that   the

Guidelines are effectively advisory, district courts must first

correctly calculate the defendant’s Guidelines range and then

“allow the parties to argue for what they believe to be an

appropriate sentence and consider those arguments in light of

the factors set forth in 18 U.S.C.A. § 3553(a).”                       United States

v. Engle, 592 F.3d 495, 500 (4th Cir. 2010).                   The district court

must       explain   its    reasons     for   the   sentence    it     imposes;   the

appellate court then reviews that sentence for reasonableness,

including both a procedural and a substantive component.                      First,

the appellate court must ensure that the district court

       committed no significant procedural error, such as
       failing to calculate (or improperly calculating) the
       Guidelines   range,   treating   the   Guidelines   as
       mandatory, failing to consider the § 3553(a) factors,
       selecting a sentence based on clearly erroneous facts,
       or failing to adequately explain the chosen sentence –
       including an explanation for any deviation from the
       Guidelines range.




       3
       In light of this conclusion, we need not reach the
applicability of the forfeiture statute as a basis to seize the
BMW.



                                          10
Id.,       quoting Gall v. United States, 552 U.S. 38, 51 (2007).

The second step considers the substantive reasonableness of the

sentence, taking into account the totality of the circumstances

and applying an abuse of discretion standard.      Id. The appellate

court, though not the district court, may accord a presumption

of reasonableness to a sentence that falls within a properly

calculated Guidelines range.      United States v. Smith, 566 F.3d

410, 414 (4th Cir. 2009);        United States v. Brewer, 520 F.3d

367, 372 (4th Cir. 2008).

       Abulaban    essentially   raises   a   procedural   challenge,

alleging the Guidelines were not correctly calculated because,

in his view, the court sentenced him on the basis of unrelated

conspiracies in North and South Carolina and on the basis of an

additional 1000-pill ecstasy sale in New York.      He characterizes

this (1) as a violation of Fed. R. Crim. P. 32(i)(3)(B) based on

his objection to the fact that the presentence report (“PSR”)

included the names of other alleged coconspirators and (2) as a

Fifth and Sixth Amendment violation on the theory that he was

sentenced for offenses to which he did not plead guilty and in

which he was not involved. 4




       4
        Abulaban’s argument that he had not waived his right to
appeal the sentence was mooted by the government’s response that
it did not seek to enforce any such waiver.



                                  11
      Regardless of the underlying theory, a fair reading of the

sentencing transcript makes it clear that Abulaban was sentenced

only on the two drug conspiracies to which he pled guilty, and

on the related firearms charge.                   The conspiracy in 08-CR-240

involved 20 kilograms; Abulaban brokered the entire deal.                               The

ecstasy conspiracy in 08-CR-101 involved a planned distribution

of 2,500 tablets in March or April 2007 in Virginia.                            Abulaban

admitted    to     both   these   conspiracies         on   July    15,   2008    before

Judge     O’Grady.        J.A.    363-65,       368-71,     391-93.        On    October

30,2008, he was sentenced by Judge O’Grady, who added a 4-level

role enhancement to the PSR’s 34 levels, which was based on 20

kilograms of cocaine and 1,015 tablets of ecstasy. J.A. 496. 5

The   judge   declined      to    find    obstruction        of    justice,     deducted

three     levels    for   acceptance      of    responsibility,          and    noted    an

advisory    Guidelines      range    of    168    to   210    months      at    level    35

Criminal History Category I.              J.A. 486-87, 496.          In listening to

arguments about the appropriate sentence, Judge O’Grady said “I

am going to sentence him based on what he did in two different

drug conspiracies and the possession of a firearm.”                            J.A. 503.

He later referred to Abulaban putting together the 20-kilogram

deal and being the leader of the drug organization for the deal


      5
        If anything,         therefore,         the    quantity     of    ecstasy       was
understated.



                                           12
at Club Envy.            J.A. 515.              While he misspoke by referring to

methamphetamine          as    one        of    the       “multiple”         conspiracies,           he

quickly accepted counsel’s correction. J.A. 516.                                        Considering

the   seriousness        of    the     offense,           the   need       for    deterrence         and

punishment, as well as Abulaban’s age, medical condition, and

limited       criminal       record,       he    imposed        a    sentence      close       to    the

bottom of the Guidelines range.                          To suggest that Judge O’Grady

relied on criminal conduct for which Abulaban’s guilt was not

firmly established borders on the frivolous.                                    The sentence was

reasonable        and        did     not        violate         any       provision           of     the

Constitution.

                                                    C.

      Defendant        Young        also    challenges          his       sentence      in     several

respects:       first,       the     court’s         attribution           of     the    entire       20

kilograms to him for purposes of sentencing; second, the four-

level    enhancement          for    use       of   body    armor;         third,       the    alleged

reliance of the court on evidence from a proceeding where Young

was     not    present;       and      fourth,           that       the    270-month          term   of

incarceration          was    substantively              unreasonable.            These       will    be

addressed in turn.

      First, the record before the trial court amply supports a

finding that the full 20 kilograms of cocaine not only were

foreseeable       to    Young       but    also      were       within      the    scope       of    his

particular agreement.               Young knew that he was part of “a big, 20

                                                    13
kilogram, cocaine deal.” J.A. 576.                      As the PSR noted, there was

evidence that when it appeared the purchasers would fall short,

Young agreed to take his initial five kilos and quickly sell

enough to return to Club Envy later that evening to buy two more

kilos.     J.A. 549, 574. 6                While the PSR attributed only seven

kilograms to Young, the government contended that Young should

be    accountable      for     all    20    kilos.        Reviewing    the    facts      that

showed Young’s knowledge of and participation in a specific 20-

kilogram transaction, the trial court correctly concluded that

the    entire    20    kilograms          was    reasonably      foreseeable       to    Young

“within    the       scope    of     the    criminal      activity    that    he    jointly

undertook.”          J.A. 466-67.           See U.S.S.G. § 1B1.3(a)(1)(A) & (B)

and app. Note 2.

       Second    and    third,        the    district      judge    correctly      enhanced

Young’s    sentence          for    use     of   body    armor     based    primarily       on

Young’s own admission to law enforcement agents that he had a

gun and body armor that night, although he took off the body

armor when he ran to the back of the Club.                           J.A. 460-61, 467.

Reference       to    trial    evidence          as    consistent    with    Young’s      own

statements       did    not        undercut      the    independent    basis       for    the




       6
        Young admitted he had been asked to take more than his
five kilos, but denied agreeing to do so. J.A. 577.



                                                 14
court’s finding at sentencing nor did it violate Young’s due

process rights.

      Finally, Young has not persuaded us that the sentence, at

the low end of the advisory Guidelines range, was substantively

unreasonable.        The district judge emphasized the seriousness of

the offense, as reflected by the quantity of cocaine and the

possession    of     both    a     weapon    and    body       armor, 7    but    he    also

considered Young’s individual history, as noted by the court’s

downward     departure       from     Criminal          History    Category       III    to

Category II when calculating the Guidelines.                          Considering the

totality of the circumstances, we cannot say that the district

judge abused his substantial discretion in sentencing Young to

the   low    end    of   the      Guidelines       on    the     cocaine    conspiracy,

followed by the mandatory minimum consecutive 60 months on the

firearms charge.



                                          III.

      Accordingly,          for     the     reasons        explained        above,       the

suppression        ruling    and    the     Judgment       and     Commitment      orders

entered by the district court as to Fares Abulaban and Jason

Young are
                                                                                 AFFIRMED.

      7
       Possession of body armor also contributed                             to   Young’s
sentence being longer than other co-conspirators.



                                            15
