                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4044


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHRISTOPHER SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Louise W. Flanagan,
Chief District Judge. (5:09-cr-00176-FL-1)


Submitted:   April 29, 2011                   Decided:   May 19, 2011


Before DAVIS, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Christopher        Smith       pled       guilty    to     possession     with

intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (2006), and was sentenced to

121 months in prison.         He now appeals, challenging his sentence.

We affirm.



                                            I

           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. Seay, 553 F.3d 732, 742

(4th Cir.), cert. denied, 130 S. Ct. 127 (2009).                              We first

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 § 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.”           Gall, 552 U.S. at 51.

           We    next   “consider         the    substantive        reasonableness    of

the   sentence    imposed.”         Id.         At    this    stage,   we   “take    into

account the totality of the circumstances.”                     Id.     “Regardless of

whether the district court imposes an above, below, or within-

Guidelines       sentence,     it     must           place    on     the    record     an

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individualized assessment based on the particular facts of the

case before it.”             United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009) (internal quotation marks omitted).                        We afford a

presumption of reasonableness to a within-Guidelines sentence.

United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see also

Rita v. United States, 551 U.S. 338, 347 (2007).



                                           II

            According to Smith’s presentence investigation report,

he was responsible for 224.15 grams of crack cocaine, for a base

offense    level    of     32.      See   U.S.    Sentencing        Guidelines     Manual

§ 2D1.1(c)(4) (2009).              This amount consisted of 25.7 grams of

crack    found    in     Smith’s    vehicle      when    he   was    arrested      and   an

additional       seven     ounces    (198.45      grams)      that    a    confidential

informant reported he had purchased from Smith.

            Smith objected to inclusion of the 198.45 grams as

relevant    conduct.          At    sentencing,     the       district     court    heard

testimony    from        Officer    Phillip      Lewis     that      the   confidential

informant told Lewis that he had purchased seven or eight ounces

of crack from Smith between 2007 and 2009.                     Lewis was aware that

federal authorities had recordings of a suspected drug dealer

stating that Smith also was selling drugs.                     Lewis testified that

the     informant      had    provided      law    enforcement         officers      with

accurate information about both Smith and a third drug dealer.

                                            3
Under Lewis’ direction, the informant set up a controlled buy of

crack cocaine from Smith on January 30, 2009.

               Following      Lewis’     testimony,   the   district    court    held

that the Government had established by a preponderance of the

evidence that the disputed 198.45 grams of crack cocaine was

properly included as relevant conduct.                Smith contends that this

was error.

               We    review    the   district     court’s   factual    finding    for

clear error.          United States v. Jeffers, 570 F.3d 557, 570 (4th

Cir.), cert. denied, 130 S. Ct. 645 (2009).                    Clear error occurs

“when, although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.”                     In re Mosko, 515

F.3d     319,       324    (4th   Cir.    2008)    (internal       quotation    marks

omitted).

               We hold that the district court did not clearly err in

finding that Smith was responsible for seven ounces, or 198.45

grams,    of    crack.        First,     hearsay   evidence    is    admissible   at

sentencing.         Fed. R. Evid. 1101(d)(3).          Also, the informant had

proven to be reliable both with respect to information about

Smith (for instance, the informant accurately described Smith’s

car)     and    in        connection     with   another     drug     investigation.

Additionally, Smith was already suspected to be a drug dealer,

as evidenced by the recorded statements. Finally, the informant

                                            4
easily arranged the controlled purchase of one ounce of crack, *

suggesting        that   Smith     previously    had     sold        crack    to   the

informant.        Under these circumstances, it was not clear error

for the district court to include the disputed amount of crack

as relevant conduct.

           In a related argument, Smith contends that the court’s

reliance     on    hearsay     evidence   to    determine       relevant       conduct

violated   Crawford       v.     Washington,    541    U.S.     36    (2004).       In

Crawford, the Supreme Court held that the Confrontation Clause

prohibits the admission at trial of testimonial statements that

are not subject to cross-examination.                 Id. at 50-51.          We reject

Smith’s argument, and note that none of the circuits to have

considered Crawford following United States v. Booker, 543 U.S.

220 (2005), have concluded that the rule announced in Crawford

applies at sentencing.            See United States v. Katzopoulos, 437

F.3d 569, 576 (4th Cir. 2006); United States v. Beydoun, 469

F.3d 102, 108 (5th Cir. 2006); United States v. Chau, 426 F.3d

1318, 1323 (11th Cir. 2005); United States v. Luciano, 414 F.3d

174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d

239, 243 (2d Cir 2005).




     *
       This transaction was not consummated because, prior to the
scheduled purchase, officers conducted a traffic stop of Smith’s
vehicle.



                                          5
                                             III

           Smith also argues that the district court committed

procedural and substantive error when it allegedly failed to

acknowledge his argument that a downward variance was warranted

because   of   pending         legislation         that     would   have      changed   the

powder-to-crack     ratio        in    the    Guidelines.       The      record    refutes

Smith’s claim.         The court plainly rejected his request for a

downward variance, stating, “I’m . . . not inclined to vary from

the guidelines because I think you’ve gotten a free pass about

every . . . way you’ve looked over the past few years.”                                 The

court noted that Smith had received very lenient sentences for

drug offenses in state court.                Further, Smith’s drug dealing had

harmed the community, which needed protection from his actions,

and there was a need to deter such conduct in the future.                               We

are   satisfied    from    the        court’s      explanation      of    the    sentence,

including the denial of the requested variance, that the court

“considered the parties’ arguments and ha[d] a reasoned basis

for   exercising       [its]     own     legal       decisionmaking           authority.’”

Carter, 564 F.3d at 328 (quoting Rita, 551 U.S. at 356).



                                             IV

           We hold that the arguments raised on appeal lack merit

and that Smith, who was sentenced at the bottom of his advisory

Guidelines     range      of     121-151          months,    failed      to     rebut   the

                                              6
presumption that his sentence is procedurally and substantively

reasonable.    We   therefore   affirm.   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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