                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-1234
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                  ANTHONY HOPSON,

                                           Appellant

                       Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (Crim. No. 2-08-cr-00216-001)
                           District Judge: Hon. Alan N. Bloch

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 24, 2011

                Before: McKEE, Chief Judge, SMITH, Circuit Judge and
                            STEARNS,∗ District Judge

                           (Opinion Filed: February 11, 2011)

McKEE, Chief Judge.

       Anthony Hopson appeals the district court’s order of judgment of conviction and

sentence. For the reasons that follow, we will affirm.



                                      I. BACKGROUND1


∗ Honorable Richard G. Stearns, District Court Judge, United States District Court for the
District of Massachusetts, sitting by designation.
       Hopson raises four arguments on appeal. He claims that: (1) the district court

violated his Fifth Amendment right not to testify when it instructed the jury that it could

consider “any statements omitted by the defendant”; (2) the evidence was insufficient to

convict; (3) the unavailability of the government’s confidential informant violated his

Sixth Amendment right to confront witnesses; and (4) the district court was unreasonable

in finding that he did not qualify as a career offender yet then varying upward based upon

career offender factors. We have jurisdiction pursuant to 28 U.S.C. § 1291.We review the

district court’s decision regarding jury instructions for abuse of discretion. We “order a

new trial on account of a district court’s refusal to give a proposed jury instruction ‘only

when the requested instruction was correct, not substantially covered by the instructions

given, and was so consequential that the refusal to give the instruction was prejudicial to

the defendant.’ ” United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir. 2008).

       Challenges to the sufficiency of the evidence place “a very heavy burden” on an

appellant. United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citations and

internal quotation marks omitted). In reviewing such challenges, we view all of the

evidence on the record “in the light most favorable to the prosecution to determine whether

any rational trier of fact could have found proof of guilt[] beyond a reasonable doubt based

on the available evidence.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)

(citations and internal quotation marks omitted).

       Finally, absent legal error, we review a sentence for reasonableness to ensure that it


1
 We write primarily for the parties and therefore will only set forth those facts that are
helpful to our brief discussion of the issues.
was both procedurally sound and substantively reasonable. United States v. Wise, 515

F.3d 207, 217-18 (3d Cir. 2008).

                                        II. ANALYSIS

       A. Hopson’s Fifth Amendment Right Not to Testify

       Hopson contends that the district court instructed the jury that it could consider his

decision not to testify as evidence of guilt, and that these instructions constituted re versible

error. The district court defined the phrase “intent to distribute,” and explained that a jury

“may infer a defendant’s intent from all of the surrounding circumstances,” including “any

statements made or omitted by the Defendant.” Hopsons’s counsel objected to this

portion of the district court’s instruction and argued that it violated the Fifth Amendment

right against self-incrimination. The district court overruled the objection.

       Hopson’s argument is undermined by the fact that the district court explicitly

instructed the jury that “the defendant had an absolute right not to testify or offer

evidence.” The court also explained that the government had the burden to prove the

defendant guilty, and that the law never imposed on a defendant in a criminal case the

burden of calling any witnesses or producing any evidence. The court emphasized that a

defendant’s decision not to testify or offer any evidence should not be considered or

discussed in deliberations.

       In addition, we have previously approved jury instructions similar to the one used

here. See United States v. Garrett, 574 F.2d 778, 783 (3d Cir. 1978). Accordingly, we

conclude that the district court did not abuse its discretion in instructing the jury as it did.

       B. Sufficiency of the Evidence
       Next, Hopson argues that the evidence was not sufficient to support his conviction

for Counts I and II (distribution of heroin). He rests that argument on the fact that there

were no witnesses to the buys, no tape recordings, video recordings or photographs of the

buys, and that the heroin found had no fingerprints or other evidence connecting Hopson to

the illegal drugs.

       Accordingly, we must determine if, after viewing the evidence in the light most

fa vorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). However, “[t]he prosecution may bear this burden entirely through circumstantial

evidence.” United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). Here, the

circumstantial evidence is more than sufficient to support the verdict.

       Hopson lived in a house that was equipped to package and distribute heroin.

Witnesses testified in detail about the interactions between Hopson and Loren Brimage, the

confidential informant. Police observed Brimage entering Hopson’s home without any

heroin on him and leaving with bricks of heroin. Police also saw Brimage enter Hopson’s

house with “buy money” and leave shortly thereafter without the money. In addition,

police discovered several items of drug paraphernalia in Hopson’s home, including

stamped bags, face masks, latex gloves, and a digital scale that contained tan residue,

consistent with the appearance of the heroin found in the stamped bags. Finally, when the

police arrested Hopson, he asked “who set me up?” This evidence is clearly sufficient to

establish that Hopson was distributing heroin out of his home.

       C. Unavailability of Confidential Informant
       Hopson complains that Brimage, the government informant, was the only witness to

the alle ged buys and yet he did not testify at trial because the government claimed it was

unable to locate him. In the absence of Brimage, the government presented the testimony

of law enforcement officials to whom Brimage told about the buys from Hopson. Hopson

asserts that the effect of this testimony was to allow Brimage to testify without actually

being present at trial, thus violating the Confrontation Clause of the Sixth Amendment.

       The Confrontation Clause is violated when hearsay evidence is admitted as

substantive evidence against a defendant who has no opportunity to cross examine the

declarant or when the hearsay statement of an unavailable witness does not bear adequate

indicia of reliability. Kentucky v. Stincer, 482 U.S. 730, 737 (1987). However, “[n]ot all

hearsay implicates the Sixth Amendment’s core concerns.” Crawford v. Washington, 541

U.S. 36, 51 (2004). Rather, the admission of the declarant’s testimony does not violate the

Constitution unless it is “testimonial hearsay.” Id. at 53.

       Here, Brimage did not appear at trial and his audio recordings were not played.

Thus, no out of court statement by Brimage was ever presented at trial. Moreover,

Hopson had every opportunity to cross examine the law enforcement officers who testified

at trial about what they saw outside of Hopson’s home, as well as in their encounters with

Brimage. We find no Confrontation Clause violation here.

       D. Whether Hopson’s Sentence Was Reasonable

       Finally, Hopson contends that the district court abused its discretion in sentencing

him to a term of imprisonment of 105 months. Hopson points out that the district court

rejected the government’s characterization that he was a career offender, yet then varied
upward based upon career offender factors. Hopson claims that because he was not a

career offender, the district court should have sentenced him to a range of 33 to 41 months.

       Our appellate review proceeds in two stages. It begins by “ensur[ing] that the

district court committed no significant procedural error, such as failing to calculate (or

improper ly 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 v. United States, 128 S.Ct. 586, 597 (2007).

We do not presume that a district court considered the factors solely because the sentence

falls within the Guidelines range. United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir.

2006). If a district court has not committed any procedural error, “we then, at stage two,

consider its substantive reasonableness.” United States v. Levinson, 543 F.3d 190, 195

(3d Cir. 2008). Our substantive review requires us not to focus on one or two factors, but on

the totality of the circumstances. Gall, 128 S.Ct. at 597; United States v. Howe, 543 F.3d

128, 137 (3d Cir. 2008). At both stages of our review, the party challenging the sentence

has the burden of demonstrating unreasonableness. Cooper, 437 F.3d at 332.

       Where, as here, a district court decides to vary from the Guidelines’

recommendations, we “must give due deference to the district court’s decision that the §

3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S.Ct. at 597.

“We afford deference to the District Court because it is in the best position to determine the

appropriate sentence in light of the particular circumstances of the case.” United States v.

Dragon, 471 F.3d 501, 506 (3d Cir. 2006).
       Here, the district court found that Hopson’s criminal history demonstrated that he

was someone who “consistently violates” society’s laws. The court pointed out that

Hopson had four prior serious drug offenses (noting that one of them was too old to count

against him under the guidelines). The court observed that the three drug trafficking crimes

for which he was sentenced had been counted as a single sentence rather than separately

because the offenses were not separated by intervening arrests, even though the three cases

involved completely separate crimes. The court pointed out that had Hopson been

arrested rather than showing up on his own pursuant to a summons, he would have

qualified as a career offender. The court also noted that Hopson committed a stalking

offense just months after he was released from serving most of a serious 3 to 6 year

sentence of imprisonment for his three other prior drug trafficking crimes. The court

reasoned that if a six year sentence did so little to deter Hopson’s criminal activities, a 33 to

41 month sentence would have little to no impact. Accordingly, the district court imposed

a lengthy sentence because of its concern that Hopson had demonstrated his proclivity for

recidivism. We can find nothing unreasonable about the sentence that was imposed and

the court did not commit any legal error in imposing it.

                                    III. CONCLUSION.

       For the reasons set forth above, we will affirm the judgment of conviction and

sentence.
