                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4263


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

EDDIE BERNARD ROGERS, a/k/a Mookie,

                Defendant - Appellant.



                               No. 09-4426


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MELANIE DEVONE ROGERS,

                Defendant - Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro.  N. Carlton Tilley,
Jr., Senior District Judge.     (1:07-cr-00208-NCT-1; 1:07-cr-
00208-NCT-4)


Argued:   September 22, 2010                 Decided:   December 17, 2010
Before NIEMEYER and DUNCAN, Circuit Judges, and Robert J.
CONRAD, Jr., Chief United States District Judge for the Western
District of North Carolina, sitting by designation.


Affirmed by unpublished opinion.        Judge Conrad wrote   the
opinion, in which Judge Niemeyer and Judge Duncan joined.


ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina; Gregory Davis, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North Carolina, for
Appellants. Randall Stuart Galyon, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.   ON BRIEF:
Louis C. Allen, Federal Public Defender, Greensboro, North
Carolina, for Appellants.    Anna Mills Wagoner, United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
CONRAD, Chief District Judge:

        Eddie Rogers (Mr. Rogers) and his wife Melanie Rogers (Mrs.

Rogers) appeal their convictions and sentences following a jury

trial on one count of conspiracy to distribute 50 grams or more

of crack cocaine in violation of 21 U.S.C. § 846 and one count

of maintaining a place for the purpose of distributing crack

cocaine in violation of 21 U.S.C. § 856(a)(1) and § 856(b).                         On

appeal, they allege that 1) their sentences are unreasonable; 2)

their sentences violate the Sixth Amendment; and 3) with respect

to Mrs. Rogers, there is insufficient evidence to support her

conviction.       For the following reasons, we affirm the judgment

of the district court.



                                            I.

     On     May    30,   2007,       the     appellants      were    indicted      for

conspiring with three others to distribute 50 grams or more of

crack    cocaine    (Count    One),       Mr.     Rogers   was   indicted    for   two

substantive counts of crack cocaine distribution (Counts Two and

Three), and both were indicted for maintaining their house in

Laurinburg, North Carolina for the purpose of distributing crack

cocaine (Count Four).         The indictment was the result of a multi-

year drug investigation by North Carolina law enforcement.                         The

appellants    proceeded       to    a     joint    trial   where    the   Government

introduced        testimony        from     undercover       officers       and    co-

                                            3
conspirators,         evidence       seized         during     several        controlled

purchases,     and     evidence      seized        during    two     searches    of     the

appellants’      residence        to        show    that     the     appellants        were

distributing     crack       cocaine     from      their    home    between     2002    and

2006.     Mr. Rogers testified that he only sold cocaine on one

day, to one person, in 2006.                 Mrs. Rogers testified that she was

not involved in dealing drugs.

       On August 29, 2007, a jury found that the appellants were

guilty of Count One and Count Four.                        In the jury charge, the

district court included a special interrogatory for the jury to

determine      the    drug     amounts        for    which     each     defendant       was

individually responsible as to Count One.                          The jury found Mr.

Rogers accountable for 13.4 grams of crack cocaine; Mrs. Rogers

was found accountable for 12.6 grams.                      Mr. Rogers was acquitted

on    Counts   Two    and    Three     of    the    indictment,       relating    to    two

distributions of crack cocaine in the amounts of 32 grams and

63.5 grams, respectively.

       After    the     trial,         the     Probation       Office     prepared        a

Presentence      Report       (PSR)         that    attributed        6.64    kilograms

(6,643.75 grams) of crack cocaine to the appellants, based on

the    trial   testimony.         The        appellants      objected    to     the    drug

quantity in the PSR at the initial sentencing hearing on August

22, 2008, so the district court continued the hearing to give

the parties time to address this issue.                      On February 19, 2009,

                                              4
the Government recalled two witnesses to testify regarding the

drug quantity.       The district court found that the first witness,

Michael Bethea, received at least 28 grams of crack cocaine from

the appellants, noting that this amount was “probably a lot less

than he got, and I’m confident that he got at least that much,

and I suspect much more . . . .”                   Joint Appendix (J.A.) 882.

The   district   court       found   that    the    testimony    of     the   second

witness,     Preston     Stubbs      McPhatter,       established        that     the

appellants    were     responsible     for    another    84     grams    of     crack

cocaine.     The court added the 13.8 grams of crack cocaine that

had   been    seized    by    law    enforcement      officers    during        their

investigation into the conspiracy, excluding the amounts related

to Counts Two and Three, and reached a total drug quantity of

125.8 grams.     The court noted that this total “is a low amount I

found.     This is in the favor of the Defendants, make no pretense

that it’s not.”      J.A. 884.

      After hearing and rejecting arguments for a variance, the

district court sentenced Mr. Rogers to 284 months imprisonment,

near the top of his advisory Sentencing Guidelines (Guidelines)

range.     Mrs. Rogers was sentenced to 151 months imprisonment, at

the lowest end of her Guidelines range.               This appeal followed.




                                        5
                                                II.

       The appellants argue that their sentences are unreasonable

on two levels: first, Mr. Rogers argues that his sentence is

procedurally unreasonable based on two assignments of error, and

second,        both       appellants       argue       that        their     sentences          are

substantively          unreasonable         because          they     are     greater        than

necessary to accomplish the goals of 18 U.S.C. § 3553(a).                                        We

review     a     sentence         for     reasonableness            under     an     abuse      of

discretion standard.                 Gall v. United States, 552 U.S. 38, 51

(2007).        We     start     by   reviewing        the    sentence       for    significant

procedural       error,         which    requires      us     to     assess       whether       the

district       court       properly        calculated         the     Guidelines          range,

considered       the       18    U.S.C.     §    3553(a)          factors,    analyzed          any

arguments presented by the parties, and sufficiently explained

the selected sentence.                 See id. at 49-50; see also United States

v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).

       Mr. Rogers’s first claim of procedural error relates to the

drug   quantity        that      the    district      court       attributed        to    him    at

sentencing.           Section 1B1.3 of the Guidelines permits district

courts to take “relevant conduct” into account in determining a

defendant’s sentence under the Guidelines.                            Thus, although the

jury   found        Mr.    Rogers       responsible         for    13.4     grams    of     crack

cocaine in Count One, that amount was only used to determine

statutory penalties and did not preclude the district court from

                                                 6
considering       all     relevant      conduct         in       calculating     the     drug

quantity for the purpose of setting a Guidelines range.                                   Mr.

Rogers    argues,       however,       that   the       district      court     mistakenly

thought that it lacked the authority to use the jury-determined

drug   quantity,        which    was   lower.           As   a    result   of    the     court

calculating      the     drug    quantity,        Mr.    Rogers      received     a    higher

sentence than he would have if the district court used the jury-

determined amount.          The claim that the district court did not

know that it could use the jury-determined amount is derived

from the following exchange between Mr. Rogers’s trial counsel

and the district court:

       MR. FISCHER: . . . our position is, the logical
       extension of all of the language that’s been in
       Blakely and Apprendi and all of these cases that have
       gotten us to where we are now, where a jury has to
       decide drug amounts, is that when the jury hears that
       and decides beyond a reasonable doubt in their
       collective wisdom what a figure is, not just for
       computation   of  the   statutory  maximum,  but  for
       application of the advisory guidelines, that that’s
       the figure that’s used.     I understand that is not
       strictly what the law says.

       THE COURT: It is not strictly what the law says.   It
       is not even what the law says, even permissibly . . .
       It’s not the law.

J.A.     878   (emphasis        added).       Mr.       Rogers      isolates      only    the

district       court’s    statement.          It     is      clear    from      the    entire

exchange, however, that the district court was simply rejecting

the argument that it was required to use the jury-determined

drug amount for advisory Guidelines computations.                                The court

                                              7
never said that it was prohibited from using that amount if it

so chose; its refusal to exercise its judgment in Mr. Rogers’s

favor hardly constitutes procedural error.

     Moreover, Mr. Rogers’s claim is based on a misapplication

of Spears v. United States, 129 S. Ct. 840 (2009) (per curiam)

and Kimbrough v. United States, 552 U.S. 85 (2007).                 In Spears,

the Supreme Court upheld a district court’s reasoning — after it

first determined the defendant’s drug quantity and corresponding

offense level — in recalculating the offense level based on a

lower crack-to-powder ratio.          Spears, 129 S. Ct. at 841, 845.

In   doing    so,    the   Supreme   Court   clarified      its     holding    in

Kimbrough by establishing that the authority of district courts

to vary from the crack-to-powder ratio in the Guidelines is not

limited      to   individualized,     case-specific       circumstances       but

includes     categorical,    policy-based    rejections      of   that   ratio.

Id. at 843-44 (citing Kimbrough, 525 U.S. at 111).

     Neither Spears nor Kimbrough dealt with a district court’s

threshold determination of drug amounts.               Rather, they concerned

the application of the crack-to-powder ratio in fashioning a

sentence     after   the   drug   amount   and   the    resultant    Guidelines

range had already been established.              This is because under the

Guidelines, a district court must first determine drug amounts,

including relevant conduct amounts, before it can determine the

applicable Guidelines range.          See USSG §§ 1B1.2, 1B1.3.               Only

                                       8
after    the   Guidelines            range    is       calculated    can    a   court     decide

whether it will vary on the basis of the crack-to-powder ratio,

and by how much.                The Supreme Court’s holdings in Spears and

Kimbrough      do        not     support       extending          the     district      court’s

authority      to    vary       from    the    Guidelines         range    to     include      the

authority      to     change         the     underlying         facts.          Judges,       like

laypeople, are entitled to their own opinions but not their own

facts.

        Mr. Rogers’s second claim of procedural unreasonableness is

that the district court erred because “it is unclear” if it

included conduct from Counts Two and Three, for which he was

acquitted, as relevant conduct in determining the drug amount

attributable        to    Mr.    Rogers       for      sentencing       purposes.        On    the

contrary,      it    is        quite   clear        from    a     plain    reading       of   the

sentencing hearing transcript that the district court did not

include the 95.5 grams of crack cocaine from Counts Two and

Three    in    calculating           the     drug       amount.         Rather,    the    court

combined the drug quantity established at the sentencing hearing

(112    grams)      with       the   amount     of      crack   cocaine       seized     by   law

enforcement         (13.8       grams),       which       excluded      the     drug     amounts

related to Counts Two and Three, to reach a total drug quantity

of 125.8 grams.             As such, there is no basis for claiming that

acquitted conduct was taken into account.



                                                   9
       Moreover, even if the district court had included acquitted

conduct in determining the drug quantity for which Mr. Rogers

was    responsible,           there        would     still    be     no    procedural       error.

Under settled law, sentencing courts may consider uncharged and

even acquitted conduct in determining a sentence, so long as the

conduct      is    proven        by    a   preponderance        of    the       evidence.        See

United States v. Watts, 519 U.S. 148, 157 (1997); United States

v.    Jones,      31    F.3d       1304,      1316    (4th   Cir.     1994).        As    we     have

previously held, United States v. Booker, 543 U.S. 220 (2005)

did    not   change          the      trial    court’s       authority      to    make     factual

findings concerning sentencing factors by a preponderance of the

evidence.         See United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005), cert. denied, 549 U.S. 852 (2006).                                    The district

court’s finding, based on a preponderance of the evidence, that

Mr. Rogers was responsible for 125.8 grams of crack cocaine was

therefore appropriate.

       Since the district court committed no procedural error, we

next evaluate whether the sentence was substantively reasonable.

Here, we take into account “the totality of the circumstances to

see    whether         the     sentencing          court     abused       its    discretion       in

concluding that the sentence it chose satisfied the standards

set forth in § 3553(a).”                      United States v. Mendoza-Mendoza, 597

F.3d 212, 216 (4th Cir. 2010) (citing Gall, 552 U.S. at 51).                                       A

sentence       within        a     properly          determined      Guidelines          range     is

                                                     10
presumed to be substantively reasonable.                        See Mendoza-Mendoza,

597 F.3d at 216 (citing Rita v. United States, 551 U.S. 338, 351

(2007)); United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.

2008).

      The    appellants      both       contend        that     their    sentences      are

substantively       unreasonable         because         the     disparity      in     the

Guidelines’s treatment of crack cocaine as opposed to powder

cocaine offenses results in sentences greater than necessary to

accomplish the goals of 18 U.S.C. § 3553(a). 1                           The appellants

highlight     a   statement      made    by    a     Department    of     Justice     (DOJ)

official after they were sentenced, urging Congress to eliminate

the sentencing disparity between crack and powder cocaine and

ask   us     to    indulge    a    counterfactual             conditional:      if    this

statement had been made earlier, then the prosecutor in this

case would have asked the district court to apply the Guidelines

range for powder instead of crack, which would have resulted in

lower sentences for both defendants.

      Even    if    this     scenario         had      occurred,        which   is    pure

speculation,       neither    the       DOJ        official’s    statement      nor     the

recommendation       by    the    prosecutor           would     have     required     the

      1
        Mr.   Rogers   also  contends  that   his  sentence  is
substantively unreasonable because the district court found him
responsible for a much higher drug quantity than that found by
the jury. As already explained, this argument is foreclosed by
the district court’s clear authority to make certain factual
findings at sentencing.

                                              11
district court to reject the Guidelines’s crack-to-powder ratio.

We    have      repeatedly       rejected         claims   that      the   crack-to-powder

ratio      violates       either       the        Equal    Protection       Clause     or     a

defendant’s due process rights.                        See, e.g., United States v.

Perkins, 108 F.3d 512, 518, 519 (4th Cir. 1997).                                   Moreover,

while Spears        permits       a    district        court    to    substitute     its    own

crack-to-powder ratio if it determines the sentencing disparity

is unwarranted, it does not require courts to apply a lower

ratio.       See 129 S. Ct. at 843-44.                  Here, the district court did

not determine that the sentencing disparity was unwarranted.                                 In

fact,      it    heard    from        the    parties       on    the    disparity     issue,

expressly recognized its authority to vary, and found that this

particular case did not call for a variant sentence based on the

disparity.        See J.A. 897.             Then, the court thoroughly discussed

the relevant § 3553(a) factors that informed its decision 2 and

imposed sentences that were within the Guidelines range.                                     We

thus conclude, based on a totality of the circumstances, that

the   sentencing         court    did       not    abuse   its       discretion,    and     the

       2
       This discussion included that: the court’s finding of drug
amounts were less than they could have been, and so its decision
was “ultimately fair to the Defendants” (J.A. 897); the crack
cocaine that appellants sold had “horrible,” “[t]errible effects
on people,” and the appellants were “there for a long period of
time putting that stuff out” (J.A. 924); firearms were
prevalent, “laying out in the living room,” even around children
(J.A. 925); Mr. Rogers showed a lack of remorse; both of the
Rogerses lied to the court about their activities; but a
sentence that included a fine would impose an undue hardship.

                                                  12
appellants have not rebutted the presumption of reasonableness

that    we   apply   to   a    sentence     within     the   properly   calculated

Guidelines range.

       The appellants next contend that their sentences violate

the Sixth Amendment.           They argue that the district court used

facts concerning relevant conduct drug amounts that were not

found   by   the     jury.     However,        they   acknowledge   that   adverse

authority precludes this claim and thus raise the issue solely

for the purpose of preservation.                 As we have repeatedly held,

this claim is meritless.            See United States v. Benkahla, 530

F.3d 300, 312 (4th Cir. 2008) (rejecting as “too creative for the

law as it stands” the argument that sentences that depend on

judge-found     facts     in   order   to      survive   reasonableness     review

violate the Sixth Amendment); United States v. Battle, 499 F.3d

315, 322 (4th Cir. 2007) (holding that the district court did

not violate the Sixth Amendment by imposing a sentence based on

facts not found by a jury); see also Rita, 551 U.S. at 352

(holding that the presumption of reasonableness that applies to

sentences that are within the Guidelines does not violate the

Sixth Amendment because “[t]his Court’s Sixth Amendment cases do

not automatically forbid a sentencing court to take account of

factual matters not determined by a jury and to increase the

sentence in consequence”).



                                          13
     Finally, Mrs. Rogers claims that the evidence supporting

her conviction is insufficient because all of it was based on

witnesses     who    were    untruthful.         Mrs.   Rogers    acknowledges,

however, that the credibility of witnesses is not subject to

appellate review and thus raises this issue only “to preserve it

in the event that new evidence of the witnesses’ untruthfulness

comes to light.”      Appellant’s Brief at 21.

     Our    review    must    determine       whether   there    is   substantial

evidence in the record, viewed in the light most favorable to

the Government, to support the jury's finding that Mrs. Rogers

is guilty beyond a reasonable doubt.               See, e.g., United States

v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                      But as Mrs.

Rogers concedes, “we may not ‘weigh the evidence or review the

credibility    of    the    witnesses’    on    appellate   review.”       United

States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) (quoting

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997)).

Because this claim is entirely based upon the credibility of

witnesses, and no new evidence supporting this claim has come to

light, it must be dismissed.



                                     III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                                         AFFIRMED

                                         14
