                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4053


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROGER ALLEN AUSTIN, JR., a/k/a Fat Rog,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:14-cr-00010-JPJ-PMS-14)


Submitted:   November 30, 2015            Decided:   December 30, 2015


Before SHEDD, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Laura Jill Koenig, KOENIG LAW FIRM, PLLC, Charlottesville,
Virginia,    Charles    Michael     Henter,    HENTERLAW,   PLC,
Charlottesville, Virginia, for Appellant.     Anthony P. Giorno,
United States Attorney, Jean B. Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Roger Allen Austin, Jr., appeals his conviction and 121-

month sentence imposed following his guilty plea to conspiracy

to     possess    with     intent        to    distribute       methamphetamine,         in

violation of 21 U.S.C. § 846 (2012).                     On appeal, Austin claims

that    his    guilty    plea    was     not    voluntary     because       the   district

court failed to include in its explanation of the nature of the

charge    against       him     that     he    would    be    held     responsible        at

sentencing for his coconspirators’ drug activities.                          Austin also

argues that the district court failed to make particularized

findings as to the scope of the criminal activity to which he

agreed     and     as     to     the     reasonable         foreseeability        of     his

coconspirators’ drug activities.                   We affirm.

       Because Austin failed to raise either of his arguments in

district court, we review each for plain error.                         United States

v.   Aplicano-Oyuela,          792     F.3d    416,   422    (4th    Cir.    2015).      To

establish plain error, Austin must demonstrate that an error

occurred, that the error was plain, and that the error affected

his substantial rights.                 Id.        In the guilty plea context, a

defendant can establish the third factor by showing a reasonable

probability that he would not have pled guilty but for the Rule

11 omission.        United States v. Massenburg, 564 F.3d 337, 343

(4th    Cir.     2009).         If   the      three-part     plain     error      test   is

satisfied, we must decide whether to cure the error, and will do

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so only if “the error seriously affects the fairness, integrity

or public reputation of judicial proceedings.”                     Aplicano-Oyuela,

792 F.3d at 422 (internal quotation marks omitted).

     Prior to accepting a guilty plea, a trial court, through

colloquy, must inform the defendant of, and determine that he

understands,    the   nature     of    the     charge    to   which    the   plea    is

offered, the penalties he faces, and the various rights he is

relinquishing by pleading guilty.                Fed. R. Crim. P. 11(b)(1);

United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

The court also must inform a defendant that it will consider any

applicable     Sentencing       Guidelines        and     the      possibility      of

departure;   however,    the     court     is   not     required    to     inform   the

defendant of the applicable sentencing range before accepting a

guilty plea.    Fed. R. Crim. P. 11(b)(1)(M); DeFusco, 949 F.2d at

118-19.   This is because, “[u]nder the Guidelines, the maximum

sentence will never exceed the maximum provided by statute” and

as long as the defendant knows the maximum possible penalty at

the time the guilty plea is offered, Rule 11 has been satisfied.

DeFusco, 949 F.2d at 119.              In reviewing the district court’s

compliance   with     Rule    11,     we   “accord      deference     to   the   trial

court’s decision as to how best to conduct the mandated colloquy

with the defendant.”         Id. at 116.

     Informing the defendant of the nature of the charge, “[i]n

most cases, . . . requires the court to recite the elements of

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the offense.”     United States v. Ferrel, 603 F.3d 758, 762 (10th

Cir. 2010).       The elements of a drug conspiracy are “(1) an

agreement between two or more persons to engage in conduct that

violates a federal drug law; (2) the defendant’s knowledge of

the conspiracy; and (3) the defendant’s knowing and voluntary

participation in the conspiracy.”             United States v. Green, 599

F.3d 360, 367 (4th Cir. 2010).             The amount of drugs involved is

not an element of the offense where, as here, the amount does

not operate to trigger either a statutory mandatory minimum or

an   enhanced     statutory      maximum      penalty.          See    21    U.S.C.

§ 841(b)(1)(C) (2012); cf. Alleyne v. United States, 133 S. Ct.

2151, 2155 (2013) (holding that any fact increasing statutory

mandatory minimum penalty is element of crime); Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000) (holding that, other than prior

conviction,     any   fact    increasing     maximum   statutory       penalty   is

element of crime).

     We   conclude     that    the   district      court   adequately       advised

Austin of the nature of the charge at the time he entered his

guilty plea.     Furthermore, by persisting in his guilty plea even

after having been advised of the 20-year maximum penalty, Austin

cannot show a reasonable probability that he would not have pled

guilty had the court advised him that his Sentencing Guidelines

range   would    be   calculated     based    in    part   on    the   reasonably



                                       4
foreseeable conduct of his coconspirators.                       Thus, Austin fails

to establish plain error.

       Turning to Austin’s sentencing claim, “the government must

prove the drug quantity attributable to a particular defendant

by a preponderance of the evidence.”                   United States v. Bell, 667

F.3d 431, 441 (4th Cir. 2011).                   “Under the Guidelines, the drug

quantities that may be attributed to the defendant include the

quantities associated with the defendant’s offense of conviction

and any relevant conduct.”               United States v. Flores-Alvarado,

779    F.3d    250,    255    (4th    Cir.       2015).      “Relevant      conduct    in

conspiracy cases includes all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity.”           Id. (internal quotation marks omitted); see

U.S.    Sentencing       Guidelines      Manual           § 1B1.3(a)(1)(B)     (2014).

“[I]n order to attribute to a defendant for sentencing purposes

the    acts    of    others    in    jointly-undertaken          criminal    activity,

those acts must have been within the scope of the defendant’s

agreement      and    must    have    been       reasonably      foreseeable    to    the

defendant.”           Flores-Alvarado,           779      F.3d   at   255    (emphasis

omitted).       Accordingly, we require sentencing courts “to make

particularized findings with respect to both the scope of the

defendant’s agreement and the foreseeability of the conduct at

issue.”       Id. at 256 (emphasis, brackets, and internal quotation

marks omitted).

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     Generally, we review for clear error “the district court’s

calculation of the quantity of drugs attributable to a defendant

for sentencing purposes.”             United States v. Crawford, 734 F.3d

339, 342 (4th Cir. 2013) (internal quotation marks omitted).

Under   this      standard,     we    will       reverse      the    district        court’s

finding    only     if    we   are    “left       with     the      definite    and    firm

conviction that a mistake has been committed.”                           Id. (internal

quotation   marks        omitted).      However,         because       Austin    did     not

object at sentencing to the district court’s findings, we review

only for plain error.            See Aplicano-Oyuela, 792 F.3d at 422.

Our review of the record leads us to conclude that Austin fails

to establish plain error as to the district court’s findings

regarding the scope of the conspiracy and the foreseeability of

Austin’s coconspirators’ actions.

     Accordingly, we affirm the district court’s judgment.                               We

dispense    with     oral      argument      because          the    facts     and    legal

contentions    are       adequately    presented         in    the    materials       before

this court and argument would not aid the decisional process.



                                                                                 AFFIRMED




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