                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4193


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TREMAYNE KENDRICK BLACKWELL, a/k/a Little Kenny, a/k/a
Tremayne Oakley Kendrick, a/k/a Kenny, a/k/a Kendrick
Jermaine Oakley, a/k/a Kendrick Tremayne Oakley,

                Defendant – Appellant.



                            No. 09-4202


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DERRICK RAYSHAWN PARKS, a/k/a Bam, a/k/a Bam Parks, a/k/a
Rayshawn Parks,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge.   (5:05-cr-00257-RLV-DCK-1; 5:05-cr-
00257-RLV-DCK-2)


Argued:   May 13, 2011                    Decided:   June 29, 2011
Before TRAXLER,   Chief   Judge,   and   SHEDD   and   DUNCAN,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina; Scott Hadden Gsell,
Charlotte, North Carolina, for Appellants. Richard Lee Edwards,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director,
Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant Derrick Rayshawn
Parks.   Edward R. Ryan, United States Attorney, Adam Morris,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                   2
PER CURIAM:

        Based   on     evidence         showing      their       involvement      in     a   drug

distribution         organization         operating          near    Statesville,            North

Carolina,       from       1999    to     2005,      Appellants         Tremayne        Kendrick

Blackwell and Derrick Rayshawn Parks were charged in a one-count

indictment with conspiring to possess with intent to distribute

50 grams or more of crack cocaine and five kilograms or more of

cocaine     powder.          See     21    U.S.C.         § 841(a)(2),       (b)(1)(A)(ii),

(iii); 21 U.S.C. § 846.              The government also filed a notice that

it intended to seek enhanced penalties under 21 U.S.C. § 851

based on Blackwell’s and Parks’ prior drug-related convictions.

Appellants      were       convicted      after      a    jury    trial.        The    district

court    imposed       a   life    sentence         for    Blackwell      and     a   360-month

sentence    for      Parks.         Appellants           raise    several    challenges         to

their     convictions,        and       Parks     challenges        his     sentence.          We

affirm.



                                                I.

        Briefly,     the     evidence       at       trial       showed     the       following.

Beginning in 1998-1999, Richard Eckles oversaw the operation of

a cocaine distribution ring near Statesville.                               Eckles obtained

kilogram-sized quantities of cocaine for distribution by lower-

level    dealers       and   stored       the    drugs      in    the   homes     of     various

relatives, including his sister Marlene and his niece Shonika.

                                                3
Eckles used his sister’s home to cook cocaine powder into crack.

Milton Gaines, Shonika’s boyfriend, helped Eckles prepare crack

for distribution.

       Eckles      used    numerous        distributors,        including      Shonika,

Gaines,    and     Appellant     Parks,         whom    Eckles     had    known      since

childhood.       Parks initially bought drugs from Shonika and Gaines

and later made at least four purchases directly from Eckles in

quantities of 4.5 ounces for a total of half of a kilogram.

Parks    also    purchased     9-     to    18-ounce     quantities        from    Robert

Geter, who was also connected to the organization.

       Appellant Blackwell was a friend of Parks and spent time

with Parks on a regular basis at Vin Booe’s house, where Parks

and Blackwell sold crack, and at Geter’s house.                          Blackwell was

also one of Shonika’s customers; he purchased crack from Shonika

in     4.5-ounce     quantities.           Blackwell      also     purchased         crack

directly from Gaines.

       Blackwell     and    Parks   both     purchased         drugs    from   and      sold

drugs to numerous members of Eckles’ organization.                        Toney Young,

for example, was one of Eckles’ suppliers.                             Young also made

trips to Greensboro to buy drugs for Eckles in kilogram and

half-kilogram quantities from Robert Dean.                      Before making these

trips, Young would pool his money together with Eckles, Parks

and others.        Blackwell also added money on one occasion.                       Young

also    sold     crack     directly    to       Parks    and     Blackwell,       and    he

                                            4
purchased from them on occasion as well.                                Likewise, Blackwell

and Parks had a similar buyer-seller relationship with various

participants in Eckles’ operation—Oderia Chipley, Deleon Dalton,

Okiera Myers, and Lashon Gaither.                         Gaither testified that for a

period       of    time    in     2000      and     2001,       he    purchased     crack    from

Blackwell through an intermediary on a weekly basis.

     Blackwell was not gainfully employed, but he owned several

vehicles      equipped          with     expensive        stereo      components       and   other

special features.               Officers also seized $5,600 from Blackwell’s

bedroom,          as    well    as     $15,000      in        cash    from    Parks’    bedroom.

Moreover, scales with cocaine residue were also seized from the

house where Parks and Blackwell were staying.

        At the close of the evidence, the jury found Parks and

Blackwell         both    guilty       on    the    sole       count    in    the   indictment.

Using    a    special          verdict      form,       the    jury    also   found     beyond    a

reasonable doubt that 50 grams or more of crack cocaine and 5

kilograms          or    more     of     cocaine         powder       was     attributable       to

Blackwell and Parks.



                                                  II.

     Approximately              six    months       after       the     verdict,      Appellants

moved under Rule 33 of the Federal Rules of Criminal Procedure

for a new trial on three grounds, only two of which they pursue

on appeal: (1) that Juror Martin was biased against them and

                                                    5
failed to disclose during voir dire that he knew them; and (2)

that the jury was tainted by threatening comments from third

parties    to   various    individual          jurors.        After   an     evidentiary

hearing, the district court denied Appellants’ motion for a new

trial.     We review a district court’s order granting or denying a

motion for new trial under Rule 33 for an abuse of discretion.

See United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).

Finding no abuse of discretion by the district court, we reject

Appellants’ claim of entitlement to a new trial on both of these

grounds.

     Juror Bias.         During voir dire, the district court asked the

jury panel as a group whether anyone knew the defendants or the

lawyers.        Juror     Martin        did    not    respond,    thereby          silently

indicating that he did not know either Parks or Blackwell.                             When

questioned      individually       by    the      attorneys,    Martin     assured      the

court that he did not know of any reason he could not be fair

and impartial, that he could render a decision based on the

evidence and nothing more, and that he could find Appellants not

guilty if the evidence dictated such a finding.

     In     conjunction      with        their       motion    for    a      new     trial,

Appellants      submitted      an        affidavit      from     James       Allard,     an

investigator      they    hired     to    interview      jurors      after    the     trial

about the effect of the third-party communications.                             Based on

his investigation, Allard alleged that Juror Martin knew both

                                              6
Parks and Blackwell prior to trial.                      According to Allard, Martin

had seen them “around town” and knew that they had been tried on

drug-related charges in a previous case but believed the judge

or jury in that trial had “passed it off.”                          J.A. 1220a.        Juror

Martin also allegedly told Allard that while Appellants were

being    tried    on    these     prior    drug         charges,    Martin    was    at   the

courthouse on an unrelated matter and saw Appellants laughing

“just like it was a big joke [as if] they knew they were going

to get off.”       J.A. 1220b.

       At the evidentiary hearing, however, Juror Martin, who did

not    recognize    Allard        in   court       or   recall     having    spoken     to   a

defense investigator, contradicted several of the assertions in

the Allard affidavit.             For example, Juror Martin testified that

he did not know Appellants personally but that he had seen them

driving on the street before.                  Juror Martin acknowledged that,

before    trial,       he   had   heard    co-workers         discussing       Parks’     and

Blackwell’s involvement in drugs when they learned that Martin

could potentially serve as a juror.                      Juror Martin denied that he

told Allard that the judge “let off” Appellants in the previous

case or that he saw Appellants laughing and approaching their

drug    charges    in       a   cavalier   fashion.           Finally,       Juror    Martin

testified that he based his guilty verdict vote only on the

evidence presented at trial and not on any previous out-of-court

knowledge.

                                               7
      To obtain a new trial because of purported juror dishonesty

during voir dire, a defendant “must first demonstrate that a

juror   failed   to   answer       honestly      a     material    question       on   voir

dire, and then further show that a correct response would have

provided a valid basis for a challenge for cause.”                            McDonough

Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); see

Jones   v.    Cooper,        311     F.3d       306,     310   (4th        Cir.    2002).

Additionally, “[e]ven where . . . the two parts of the McDonough

test have been satisfied, a juror’s bias is only established

under    McDonough      if     the     juror’s          motives      for     concealing

information or the reasons that affect the juror’s impartiality

can truly be said to affect the fairness of the trial.”                           Conaway

v. Polk, 453 F.3d 567, 588 (4th Cir. 2006) (internal quotation

marks and alterations omitted).

      The district court assumed for purposes of analysis that

the   first   McDonough      prong     was      satisfied,        i.e.,    that    Martin

“failed to answer honestly a material question on voir dire.”

McDonough, 464 U.S. at 556.                 Nonetheless, the district court

concluded that there was no actual or implied bias on the part

of Juror Martin such that a “for cause” challenge would have

necessarily succeeded:

      At most, Juror Martin knew or had heard something of
      Defendants’ . . . reputations in the community.
      Martin never had any personal dealings with either of
      the Defendants, nor did Martin possess any personal
      knowledge about the charged conduct.       Martin was

                                            8
        consistent in advising Investigator Allard and the
        Court that he based his verdict on the evidence
        presented during trial as opposed to any extraneous
        discussions [he] overheard . . . .       Although this
        Court likely would have excused Juror Martin for cause
        in an abundance of caution, [Appellants] fail to
        establish that an implied bias existed that would have
        required the Court to excuse Juror Martin for cause.
        For these reasons, the Court finds that the second
        prong of McDonough is not met.

J.A. 1413-14.

        Appellants contend that the district court misapprehended

the McDonough standard because McDonough obligates a defendant

to establish only that the trial court had a valid reason to

dismiss the dishonest juror, not that the trial court would have

been required to dismiss the juror.                         As this court has observed,

however, a “McDonough claim necessarily fails unless the court

would     have    committed          reversible         error-that      is,    abused      its

discretion-in failing to dismiss [a juror] . . . (1) where a per

se rule of disqualification applies; [or] (2) where the court

demonstrates          a    clear     disregard        for    the   actual     bias   of   the

juror.”     United States v. Fulks, 454 F.3d 410, 432 (4th Cir.

2006)     (internal         quotation       marks      omitted).        Appellants        have

identified       no       per   se   rule   of       disqualification        applicable     in

light of Juror Martin’s testimony at the hearing.                             Moreover, we

have found nothing in our review of the record to establish that

the   district        court     clearly     erred      in     finding   no    actual    bias.

Juror Martin denied stating to Allard that he saw Appellants


                                                 9
laughing or that Appellants believed they would be acquitted.

Rather,     Juror    Martin      made      clear    that    he     had   no    personal

knowledge    of     the   Appellants       and   was   only      generally    aware   of

them.     Martin specifically denied any knowledge that Appellants

were involved in drug-related activity.                     Therefore, Appellants

have also failed to establish that the district court clearly

disregarded any actual bias harbored by Juror Martin.

     We find no error in the district court’s conclusion that

Appellants     were       unable     to    establish       the    second      prong   of

McDonough.    Accordingly, we reject Appellants’ juror bias claim.

     Third-Party Intimidation of Jurors.                    During trial, various

unknown individuals communicated in a threatening manner to a

few of the jurors as they walked from the courthouse to have

lunch.     With Appellants’ consent, the district court questioned

each of the jurors individually on the record.                            Juror Jolly

stated that two people who had been observing the trial from the

gallery told her that “we, as jurors, if we found a conviction,

we better be ready to deal with the consequences . . . [a]nd

they know who we are.”              J.A. 624.       Jolly admitted being “very

scared.”     J.A. 626.        When Jolly told the other jurors what had

happened, she was told not to worry about it.

     Juror    Stover       did     not    receive   any    outside       communication

directly; he indicated that he had heard that one of the other

jurors had been told to “let them go easy” and that Jolly had

                                            10
appeared      to    be    very   upset.      Juror       Watts    and    Juror       Cooper

subsequently confirmed that while they were eating lunch, some

men dining in the restaurant turned around and told the jurors

to “go easy” on Blackwell and “leave him alone.”                         The district

court asked Stover, Watts and Cooper if they could still be

fair, and they all responded affirmatively.

       Because      the     district      court     did     not     question         Jolly

individually        regarding      whether        she    could     still       be     fair,

Appellants     asked      the    court    bring    her    back    and    do    so.      The

district court declined, but indicated it would ask the jury as

a group, outside the presence of the spectators, “if they are

able to sit and hear the evidence and render a verdict based on

the evidence and the law that the court gives to them.”                               J.A.

645.    Appellants did not object to the court’s proposed group

voir dire.

       The district court then questioned the jury as a whole as

follows:       “[C]an all the jurors and each of you individually

continue to sit and hear the case, hear the evidence, and render

your verdict according to what you hear from the witness stand

and the exhibits [admitted] into evidence and follow the law

that the court gives to you?”              J.A. 651.       There were affirmative

nods from the jurors, and no individual juror gave a contrary

indication.        Appellants moved for a mistrial, arguing that the

jury    had        been    “hopelessly       tainted       by      the        unfortunate

                                           11
circumstances.”      J.A.     653.      The    district     court     denied     the

motion, concluding that the jury “has not been tainted to the

necessary extent to grant such a motion in terms of potential

prejudice to the defendants.”        Id.

     In their motion for a new trial based on the alleged jury

taint, Appellants relied on Allard’s affidavit, which indicated

that, in post-trial interviews, various jurors stated that Jolly

had been “very upset” by the threats, was “afraid for her life

and her children,” and did not want to be “involved.”                            J.A.

1220b.     The    district     court,      however,       concluded       that   the

additional evidence submitted in support of Appellants’ motion

for a new trial was “not significantly different either in kind

or in scope than the information of improper juror contact that

the Court was presented with during the trial.”                          J.A. 1416.

Because the district court concluded that the evidence was not

“newly discovered,” it denied the motion as untimely and noted

that it did not have the discretion to disregard the time limits

imposed by Rule 33.         See Fed. R. Crim. P. 33(b).                  On appeal,

Appellants contend that their motion for a new trial was timely

but that even if it was not, the district court should have

exercised its discretion to consider the motion.               We disagree.

     Under Rule 33(b), “[a]ny motion for a new trial grounded on

newly discovered evidence must be filed within 3 years after the

verdict   or   finding   of   guilty.”        Fed.   R.    Crim.    P.    33(b)(1).

                                     12
However, “[a]ny motion for a new trial grounded on any reason

other than newly discovered evidence must be filed within 14

days after the verdict or finding of guilty.”                     Fed. R. Crim. P.

33(b)(2).       Because Appellants did not file the motion for a new

trial    until      several      months    after    their     verdicts,    they    were

required      to   present       newly    discovered    evidence     in    support    of

their motion.

       “Newly discovered evidence” under Rule 33(b) means evidence

that, in fact, was discovered since the conclusion of the trial.

See United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989);

United States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987).

Nothing submitted by Appellants in support of the motion for a

new trial could be considered “newly discovered.”                          During the

court’s in-chambers voir dire of Juror Jolly, Jolly admitted

that    she     had     been    very     frightened    and    intimidated     by     the

comments made to her.              Other jurors confirmed then that Juror

Jolly was upset and crying.                The district court and the parties

were    aware      of   this    information       during    trial,   and   the     scant

additional details added by Appellants’ post-trial evidence did

not reveal anything new about the effect of the communications

to Jolly.

       Furthermore,            Appellants’        purported     newly      discovered

evidence is not the type of evidence that can support a Rule 33

motion.       “[A] Rule 33 motion is designed to rectify factual

                                             13
injustice, not to correct legal error.”                    United States v. Evans,

224 F.3d 670, 674 (7th Cir. 2000).                       Thus, “a Rule 33 motion

based upon ‘newly discovered evidence’ is limited to where the

newly discovered evidence relates to the elements of the crime

charged.”       United States v. Hanoum, 33 F.3d 1128, 1130 (9th Cir.

1994); see United States v. Rollins, 607 F.3d 500, 504 (7th Cir.

2010)    (explaining    that    “Rule       33    deals     with   contentions      that

evidence     discovered      after    trial        shows    that   the    accused    is

innocent”).       As we have stated, a new trial should be granted

under Rule 33 only if “the evidence [would] probably result in

acquittal at a new trial.”           Chavis, 880 F.2d at 793.

        Finally, we reject Appellants’ argument that the district

court committed error by refusing to consider an untimely motion

under Rule 33(b)(2).           Although the district court mistakenly

indicated that an untimely motion under Rule 33 deprived it of

jurisdiction, see Rice v. Rivera, 617 F.3d 802, 809 (4th Cir.

2010)    (per    curiam),    Appellants           have    failed   to    present    any

circumstances      suggesting        that    their       filing    was   delayed      by

“excusable       neglect.”           Fed.         R.     Crim.     P.    45(b)(1)(B).

Accordingly,       we   affirm       the         district     court’s     denial      of

Appellants’ motion for a new trial as untimely.




                                            14
                                              III.

                                               A.

     Appellants        raise       three      other   issues.       First,    Appellants

challenge the district court’s decision to admit under Federal

Rule of Evidence 1006 a chart offered by the government as a

summary    of    telephone     record         evidence   showing      that    Parks   and

Blackwell       were   connected         to    virtually      every    participant    in

Eckles’    drug    distribution          operation.        We   apply    an   abuse-of-

discretion standard to a district court’s decision to admit a

summary chart under Rule 1006.                  See United States v. Foley, 598

F.2d 1323, 1338 (4th Cir. 1979).

     The case agent explained that “the phone chart . . . was

compiled    [using]      .     .     .     probably    over     a   hundred     thousand

telephone calls reviewed in this case” and that use of the chart

would assist him in explaining the telephone evidence to the

jury.     J.A. 1022.      Essentially, the chart consisted of a circle

of the names and numbers of other participants in the Eckles

organization, all connected with arrows pointing to Parks, whose

name was at the center of the circle.                    Blackwell’s name appeared

at the bottom center of the chart.

     During its deliberations, the jury asked to see the chart.

Appellants objected, arguing that the chart was inaccurate and

that “the evidence is the testimony, not the chart[],” which was

“introduced merely as an aid to the jury.”                            J.A. 1186.      The

                                               15
district   court   overruled        Appellants’   objection    and    sent       the

chart to the jury room with a cautionary instruction reminding

the jury that “charts and summaries . . . are only as valid as

the underlying evidence tending to support them. . . . [I]t is

that evidence on which you must rely.”            J.A. 1187.

     Federal Rule of Evidence 1006 provides as follows:

          The contents of voluminous writings, recordings,
     or photographs which cannot conveniently be examined
     in court may be presented in the form of a chart,
     summary,   or   calculation.     The   originals,   or
     duplicates, shall be made available for examination or
     copying, or both, by other parties at reasonable time
     and place. The court may order that they be produced
     in court.

Fed. R. Evid. 1006.        Rule 1006, therefore, permits the admission

of   “charts    into    evidence      as    a   surrogate     for    underlying

voluminous records”; its purpose “is to reduce the volume of

written documents that are introduced into evidence by allowing

in evidence accurate derivatives from the voluminous documents.”

United States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004).

Thus, under Rule 1006, the summary chart itself may come into

evidence     provided   it     is    “an    accurate    compilation        of    the

voluminous records sought to be summarized” and the underlying

records are “otherwise . . . admissible in evidence.”                  Id.       The

underlying     documents     themselves,     however,   do   not    need    to    be

admitted for a Rule 1006 chart to come into evidence.                      See id.

at 272-73.


                                       16
     We conclude that the district court acted well within its

discretion in admitting the phone records chart.                              Appellants do

not dispute that the underlying telephone records summarized in

the chart were too voluminous to be conveniently examined in

court,    nor      do    they    dispute        that      the    telephone    records      were

admissible.            Appellants argue only that the chart summarizing

the phone records was not sufficiently accurate as it listed

“only    a    fraction      of     the    100,000         call    records     entered      into

evidence.”         Brief of Appellants at 29.                      Similarly, Appellants

suggested at trial that the chart was misleading in its central

placement     of       Parks’    name.      Rule       1006,      however,    “afford[s]      a

process      to    test    the    accuracy       of       the    chart’s    summarization.”

Janati, 374 F.3d at 273.                 Although the underlying evidence need

not be introduced into evidence, Rule 1006 “require[s] that the

documents         be     made     available          to     the    opposing       party     for

examination        and    copying    at     a    reasonable        time    and    place”    and

permits      the       district     court       to     order      “that     the   underlying

documents actually be brought to court.”                          Id.     Appellants do not

suggest that they were deprived of the opportunity to examine

the underlying records or challenge the accuracy of the summary

in court.         Accordingly, this argument fails.                     See United States

v. Strissel, 920 F.2d 1162, 1164 (4th Cir. 1990) (per curiam)

(rejecting         argument       that    charts          were     based     on   inaccurate

information         and     were     therefore            inadmissible       because       “the

                                                17
underlying      evidence       [was]    admissible         and    available          to     the

opponent so that a proper cross-examination [could] be had”).

       Appellants       also     challenge        the     admission       of     a        chart

illustrating      the     organization         of      Eckles’    drug    distribution

conspiracy.       The case agent prepared the chart as an aid to the

jury based on trial testimony that had already been presented

from    various      members     of    the     conspiracy        and   others.            Even

assuming the district court committed error, and thereby abused

its discretion, see United States v. Delfino, 510 F.3d 468, 470

(4th Cir. 2007) (explaining that a district court abuses its

discretion when it “commits an error of law”), by admitting the

organizational chart into evidence and sending it back to the

jury    room,   we    nevertheless       conclude        that    any   such     error      was

harmless.       The evidence connecting both Parks and Blackwell to

the    conspiracy      was     overwhelming;           indeed,    Appellants         do    not

challenge the sufficiency of the evidence on appeal.                             We agree

with    the     government       that    the        prejudicial        effect        of    the

organizational chart, if any, would have been minimal in light

of the substantial evidence introduced against Appellants.                                 The

chart    did    not     assign    a     role      or    title    within       the     Eckles

organization to either Parks or Blackwell, nor did it purport to

summarize alleged drug transactions by Appellants or the alleged

amounts involved.         Rather, the chart used lines with arrows to



                                             18
show Appellants were acquainted with or were somehow connected

to the other conspiracy members.

       Additionally, the district court’s instructions to the jury

further minimized any prejudicial effect, explaining that “[a]

chart and summary is not in itself evidence or proof of any

fact”    and   that    the    chart    “created    in    preparation     for        this

litigation”     merely       offered   “a    party’s    interpretation        of     the

facts in the case.”              J.A. 1103.       The court twice cautioned

jurors to “disregard [the] chart entirely” if they found the

chart to be inaccurate or untruthful, J.A. 1103, and to base

their   decision      on   the    underlying    evidence.          Accordingly,      we

reject Appellants’ argument that the district court committed

reversible error in admitting the charts.

                                         B.

       Appellants next raise a Confrontation Clause challenge to

the testimony of Clifford Watkins.                Watkins testified that he

was in the drug business with Leonard Clement and that Watkins

met    Parks   through     Clement.         Watkins,    at   the    behest    of    the

police, recorded a conversation with Clement in which Clement

talked about getting money from “Bam”—who Watkins identified as

Parks—to purchase drugs.           The district court admitted the audio

tape    and    Watkins’      related   testimony       under   Federal       Rule    of

Evidence 801(d)(2)(E).           Clement did not testify at trial.



                                         19
     The        Confrontation            Clause       of        the     Sixth      Amendment       bars

“admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.”

Crawford v. Washington, 541 U.S. 36, 53-54 (2004).                                        In order to

determine        if     a     statement         was        “testimonial”            and     therefore

excludable under the Confrontation Clause, we ask “whether a

reasonable        person          in    the     declarant’s             position          would    have

expected his statements to be used at trial-that is, whether the

declarant       would       have       expected       or    intended          to    ‘bear    witness’

against    another           in    a    later     proceeding.”                 United      States    v.

Udeozor, 515 F.3d 260, 268 (4th Cir. 2008); see United States v.

Jordan,    509        F.3d    191,      201     (4th       Cir.       2007)     (“[T]he      critical

Crawford issue here is whether [the declarant], at the time she

made her statements . . . , reasonably believed these statements

would be later used at trial.”).                           We conclude that a reasonable

person     in     Clement’s            position       would           not   have     expected       his

comments to be used subsequently at trial given that he did not

know he was being recorded by his associate Watkins.                                       See United

States     v.    Watson,          525    F.3d        583,       589     (7th       Cir.    2008)    (“A

statement       unwittingly            made     to     a    confidential            informant       and

recorded        by      the        government              is     not       ‘testimonial’           for

Confrontation           Clause           purposes.”)                    Therefore,          Clement’s



                                                  20
statements         were    not   “testimonial”          within      the   meaning      of    the

Confrontation Clause. *

                                                C.

       Finally,       Appellant         Parks    argues      that   the    district         court

committed         procedural        error       in    calculating         his      Guidelines

sentencing range by relying on unsupported drug amounts.                                      The

district         court    adopted    the      recommendation        of    the    presentence

report (PSR) that 2.6 kilograms of crack was attributable to

Parks for a base offense level of 36.

       In    reviewing      a    sentence,       we   must     first      ensure    that     the

district         court    did     not     commit      any     “significant         procedural

error,” such as failing to properly calculate the applicable

Guidelines         range.        Gall    v.     United      States,      552    U.S.   38,    51

(2007).          Reliance on “clearly erroneous facts” will constitute

“significant procedural error.”                   Id.       However, procedural errors

committed at sentencing are subject to harmlessness review.                                  See

United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010).

Procedural error is harmless if we can say with “fair assurance”

that       the     district      court’s        explicit       consideration           of    the

       *
       To the extent that Appellants challenge the district
court’s admission of Watkins’ testimony under the co-conspirator
exception to the hearsay rule, see Fed. R. Evid. 801(d)(2)(E),
we disagree.   There was ample evidence tying Clement to Parks,
including phone records, and Clement’s statements were clearly
in furtherance of the conspiracy. See United States v. Neal, 78
F.3d 901, 904-05 (4th Cir. 1996).



                                                21
appropriate facts would not have affected the sentence imposed.

Id. (internal quotation marks omitted).

       The    record,       including             trial    testimony          from       government

witnesses and the sentencing testimony of Agent Ramsey, provides

sufficient      support          for        the    court’s      drug     quantity          finding.

Eckles    testified         that       he    supplied         Parks    with    4.5       ounces    of

cocaine      powder    on    4     occasions;           the    evidence       suggested       Parks

cooked the 18 ounces into cocaine base.                           William Barber, Eckles

nephew, testified that he saw Parks twice receive crack from

Eckles -- 9 ounces one time and 18 ounces on the other.                                       Young

testified that from 2002-2003, he delivered 18 ounces of crack

to Parks.        Gaines testified that he gave Parks at least 2.5

ounces of cocaine powder on about 10 occasions, which was cooked

into    cocaine    base.           And       Randall      Stovall,       a    distributor         for

Eckles, testified that he gave Parks at least 4.5 to 9 ounces of

crack.       Based on the testimony of Eckles and Barber attributing

45 ounces or 1275.75 grams of crack to Parks; the testimony of

Young    attributing         18    ounces          or     510.3       grams    of    crack;       the

testimony of Gaines attributing 25 ounces or 708.75 grams of

crack;    and    the    testimony            of    Stovall      attributing          4    grams    of

crack, the district court arrived at a total of 2608.2 grams, or

2.6 kilograms, of crack cocaine attributable to Parks.                                        There

was additional evidence suggesting that the total amount found

by the district court was a conservative figure.                                     Accordingly,

                                                   22
we conclude that the district court did not commit clear error

in   finding   the   drug   quantity   attributable   to   Parks   for

sentencing purposes.



                                 IV.

     For the foregoing reasons, the convictions and sentences of

Appellants are hereby

                                                            AFFIRMED.




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