                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4633


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JAMEL CHAWLONE BROWN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:13-cr-00016-JPJ-PMS-1)


Submitted:   May 28, 2015                 Decided:    June 19, 2015


Before WILKINSON, AGEE, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry Shelton, Federal Public Defender, Brian J. Beck, Assistant
Federal Public Defender, Abingdon, Virginia, for Appellant.
Anthony P. Giorno, Acting United States Attorney, Debbie H.
Stevens, Special Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Jamel Chawlone Brown appeals from his 110-month sentence

entered pursuant to his guilty plea to possession of contraband

in prison, in violation of 18 U.S.C. § 1791(a)(2) (2012), and

possession of heroin, in violation of 21 U.S.C. § 844(a) (2012).

On appeal, Brown raises numerous challenges to the calculation

of the Guidelines range, as well as the sentence imposed.                        We

affirm.

                                          I.

     Brown    first    argues      that       the    district   court   erred   by

applying     the    cross-reference       in        U.S.   Sentencing   Guidelines

Manual § 2P1.2(c) (2013), which directs courts to “apply the

offense level from § 2D1.1” if the “object of the offense was

the distribution of a controlled substance.”                  As a result of the

application    of   this    cross-reference,          Brown’s   guidelines   range

was increased from 37 to 46 months’ imprisonment, to 110 to 137

months’ imprisonment.         Brown contends that the application of

the cross-reference was improper because he pleaded guilty to

simple possession only.

     We need not reach the merits of this argument because even

assuming the district court improperly applied the § 2P1.2(c)

cross-reference,      any   such   error       was     harmless.    Applying    the

“assumed error harmlessness inquiry,” we may affirm a sentence

without reaching the merits of an asserted guidelines error if

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(1) “the district court would have reached the same result even

if   it   had   decided   the    guidelines          issue     the   other     way,”   and

(2) “the sentence would be reasonable even if the guidelines

issue had been decided in the defendant’s favor.”                          United States

v.    Gomez-Jimenez,       750       F.3d       370,     382     (4th       Cir.   2014)

(quoting United States v. Savillon-Matute, 636 F.3d 119, 123

(4th Cir. 2011)).

      In this case, the first element of the inquiry is satisfied

by the district court’s unambiguous statement that it would have

imposed the same 110-month sentence even if it had decided the

cross-reference issue in Brown’s favor.                      See J.A. 381 (“[W]ere

the correct guideline range 37 to 46 months, I would have varied

upward to the sentence I am prepared to impose.”).                            Proceeding

to the second step of the inquiry, we must consider whether the

110-month sentence would be substantively reasonable even if we

were to assume that the district court erred in applying the

cross-reference.           In     order         to      assess       the     substantive

reasonableness of this sentence, we consider “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),” according “due deference”

to   sentences    that    vary    from      the      guidelines       range.       Gomez-

Jimenez,    780   F.3d    at   383    (quoting         United    States     v.   Mendoza-

Mendoza, 597 F.3d 212, 216 (4th Cir. 2010); United States v.

                                            3
Engle, 592 F.3d 495, 504 (4th Cir. 2010)).                      Here, the district

court    provided    a   detailed       explanation      of    why    the   particular

facts of the case would justify a sentence of 110 months even if

the cross-reference did not apply, citing, among other things,

the seriousness of the offense and Brown’s criminal history.

Because the record reflects that the district court carefully

considered the requisite § 3553(a) factors in light of Brown’s

individual    circumstances          and    the    arguments        presented     by    the

parties,     we    conclude      that      the    110-month    sentence         would    be

substantively      reasonable        even    if   the   cross-reference          did    not

apply.      We therefore find that any error with respect to the

§ 2P1.2(c)        cross-reference           was    harmless         and   affirm        its

application without reaching the merits of Brown’s arguments.

                                            II.

       Brown next contends that the district court improperly used

rote    multiplication      to    calculate       the   applicable        drug    weight.

According    to    Brown,     drug    estimates      must     err    on   the    side    of

caution, and Brown contends that the court’s dry calculations

ignored the conjecture and assumption involved in attributing

Brown with responsibility for 24 bags of heroin, each containing

.9 grams.

       In   assessing       a     challenge        to    the        district      court’s

application of the Guidelines, we review the district court’s

factual findings for clear error.                    United States v. Alvarado

                                             4
Perez, 609 F.3d 609, 612 (4th Cir. 2010).                    The Government is

required to prove a defendant’s drug quantity by a preponderance

of the evidence.      United States v. Carter, 300 F.3d 415, 425

(4th Cir. 2002).      The defendant bears the burden to demonstrate

that   the   information    contained      in   the   presentence    report    is

unreliable or inaccurate.         United States v. Kiulin, 360 F.3d

456, 461-62 (4th Cir. 2004).       The district court is not required

“to err on the side of caution in approximating drug quantity,”

but need “only determine that it was more likely than not that

the defendant was responsible for at least the drug quantity

attributed to him.”       Id. at 461 (emphasis in original).

       We hold that the court did not clearly err in relying on

co-Defendant     Ashley     Wilson’s       testimony        that,   at    Brown’s

direction, she smuggled 24 bags of heroin into the prison and

transferred three bags to Brown via a kiss.                   Prison officials

later recovered two bags from Brown while he was in a dry cell.

The bags contained a total of 1.8 grams of heroin.

       First, the district court’s methodology of multiplying the

known number of balloons by the quantity contained in the two

balloons       that        were     seized            and       weighed       was

appropriate.     Cf. United States v. Hickman, 626 F.3d 756, 769

(4th Cir. 2010) (“[W]here courts have evidence of a number of

transactions, they have been permitted to multiply that number

by an average weight-per-transaction to reach an estimate.”).

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While Hickman recognized that district courts should err on the

side of caution, Hickman was addressing a case “where evidence

of   unknown     transactions         was   meager       and    offered    virtually     no

guide as to the amounts that may have been involved.”                               Id. at

770.    Here, there was evidence, explicitly found credible by the

district court, that there were 24 bags involved in the offense.

Two of the bags contained a total of 1.8 grams of heroin, and

Wilson testified that all the bags, which were delivered to her

together       and   were     to   be    transferred           secretly,    appeared    to

contain the same amount of the same substance.                           Brown presented

no evidence that the number of bags was incorrect or that the

bags   contained       any    other     substance        or    weight.      The    district

court concluded that all the bags contained the same amount and

substance and calculated a drug weight of 21.6 grams.                               Because

the drug weight was calculated in an acceptable manner based on

specific evidence regarding the number of balloons and their

contents, the district court did not clearly err in determining

the drug amount.

                                            III.

       Brown    next    contends        that   the      district    court    incorrectly

synthesized the whole of the record evidence when considering

Wilson’s testimony.            Brown avers that Wilson’s testimony was not

credible   and       was     contradicted          by   the   record.      As     discussed

above, the district court’s factual findings are reviewed for

                                               6
clear   error.          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.”                  United States v. Harvey, 532 F.3d

326, 336-37 (4th Cir. 2008) (citation and internal quotation

marks   omitted).         In     calculating            drug    amounts       for    sentencing

purposes, “a sentencing court may give weight to any relevant

information        before       it,        including           uncorroborated          hearsay,

provided       that     the     information             has     sufficient          indicia    of

reliability        to   support        its        accuracy.”            United       States     v.

Wilkinson,        590   F.3d    259,        269       (4th    Cir.     2010).        “[W]hen    a

district court’s factual finding is based upon assessments of

witness credibility, such finding is deserving of the highest

degree of appellate deference.”                       United States v. Thompson, 554

F.3d    450,      452    (4th       Cir.     2009)       (internal           quotation     marks

omitted).

       Our   review      of    the     record         confirms        that    the    Government

established the relevant drug quantity by a preponderance of the

evidence.         Although      the    quantity         was     based    primarily        on   the

testimony of Wilson, the district court was able to view and

examine      Wilson.          The     court       had        before    it     her    eyewitness

testimony as to the number of bags and the similarity of the

bags.     Two of the bags were actually weighed and tested.                                There

is no contradictory evidence in the record, and the facts Brown

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now relies upon were before the district court when it made its

ruling.      Thus, we find that the district court’s credibility

finding was not clear error.

                                             IV.

     Brown next argues that the district court erred in applying

a two-point leadership role adjustment under USSG § 3B1.1(c).

Brown avers that such an enhancement is error as a matter of

law, given that he was only convicted of simple possession of

heroin for one transaction where he lacked any physical control

over Wilson.

     Contrary       to    Brown’s     argument,         the    issue    at     hand     is   a

factual one, and we review the district court’s assessment of a

leadership     role       enhancement        for    clear      error.          See     United

States v.    Thorson,        633    F.3d   312,     317   (4th     Cir.       2011).      The

Sentencing Guidelines provide for a two-level adjustment where

the defendant is found to be an organizer, leader, manager, or

supervisor     in     a    conspiracy        that       involves       less     than     five

participants.         USSG    §    3B1.1(c).        In    determining         whether     the

defendant     exercised            control       over     at     least         one      other

participant, see United States v. Rashwan, 328 F.3d 160, 166

(4th Cir. 2003), the court should consider:

     the exercise of decision making authority, the nature
     of participation in the commission of the offense, the
     recruitment of accomplices, the claimed right to a
     larger share of the fruits of the crime, the degree of
     participation in planning or organizing the offense,

                                             8
       the nature and scope of the illegal activity, and the
       degree of control and authority exercised over others.

USSG § 3B1.1(c) cmt. n.4.

       Here, the district court found that Brown organized the

scheme and directed Wilson on her role.                            The court noted that

Wilson was young and naïve and without motive other than to

please      Brown.         Due    to   her     submission,         Brown    dominated    and

controlled her activities.                  Intending to distribute the heroin,

Brown      arranged       for    the   drugs    to    be     delivered     to   Wilson     and

directed Wilson to bring the heroin to the prison and transfer

it   to    him.      The    district        court’s        factual    determination      that

Brown exercised control over at least one other participant in

the conspiracy was well-supported by the record.                           Therefore, the

district court did not clearly err in imposing the two-level

enhancement for having a leadership role.

                                               V.

        Finally,      Brown        contends         that     the     district    erred      in

determining that his crime was not motivated by drug addiction.

District         courts    may     consider     drug        addiction      in   choosing    a

reasonable sentence.              United States v. Garcia, 497 F.3d 964, 972

(9th      Cir.    2007).         However,    here,     the     district     court   made     a

factual finding that Brown’s crime was not motivated by drug

addiction.




                                               9
       The record shows that Brown had negative drug tests while

in prison and that the crime involved an amount much larger than

a   user   would     possess.        Brown    relies   on    an   investigator’s

testimony that drug tests will only be positive if the prisoner

used    the   drug    within     a   three-day    period,     and    on    Brown’s

statement to the probation officer that he used heroin in prison

due to an addiction.            Nonetheless, given the amount of heroin

involved, Brown’s negative drug tests, and Wilson’s statements

regarding her knowledge of Brown’s drug use, it was not clear

error for the district court to conclude that Brown was not

motivated by drug addiction.

                                        VI.

       Based on the foregoing, we affirm Brown’s sentence.                     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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