                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4591


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

GARY BERNARD WILLIAMS,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:07-cr-00402-WDQ-1)


Submitted:    August 20, 2009                 Decided:   August 31, 2009


Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney,   A.  David   Copperthite,   Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Gary Bernard Williams was convicted of two counts of

distribution of cocaine and one count of distribution of fifty

grams    or    more       of    cocaine    base,        in    violation         of   21    U.S.C.

§ 841(a)(1)        (2006).         At    sentencing,          the    court       found,     by    a

preponderance of the evidence, that Williams committed the first

degree   murder       of       Robin    Welshons,       who    was       intended     to    be    a

government witness against Williams.                         He appeals his sentence,

contending         that    his    attorney         labored      under       a    conflict         of

interest and should have been replaced with different counsel.

Williams      argues      also    that    he     had    insufficient         notice       of     the

government’s evidence in support of the finding of murder, and

insufficient time to prepare.                  Last, Williams complains that the

evidence was hearsay and that a standard of proof higher than a

preponderance        of    the    evidence       should       be    required,        given       the

significant increase in sentence to which he was subject based

on the relevant conduct.                We affirm.

              First,       Williams       argues        that       his    attorney         had     a

conflict      of    interest       and    that     he    was    not      questioned        as    to

whether he wished to proceed with current counsel or have new

counsel appointed.              We find that there was no conflict, thus,

the duty to inquire never arose.                    Defense counsel requested that

an attorney be present on her behalf at Williams’ sentencing

hearing because she had heard that Williams’ parents believed

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that she encouraged or convinced Williams to murder Welshons.

She wanted counsel present to protect her interest, if the need

arose.

            Upon     inquiry    from    the     court,    the    government          stated

that it had no evidence that implicated counsel in Welshons’

death.     Further, the prosecutor explained that, Williams’ family

believed that, after reviewing the evidence with his lawyer,

Williams conceived of the plan to kill Welshons.                              At no time

during the sentencing hearing was any evidence presented that

implicated counsel in the death of Welshons; thus, her concern

about a possible conflict never came to fruition.

            Williams        asserts    that      counsel,       by        expressing      her

concern over a conflict, conceded that he did commit the murder.

Upon   review   of    the     sentencing        transcripts,         we    find     no   such

concession by counsel.            To the contrary, counsel stated that

Williams’    family        believed    that      he    did,   but         counsel    argued

strongly    that     the    evidence    did      not    support       a     finding      that

Williams was guilty of the murder, and she aggressively cross-

examined the testifying officers.                     Moreover, counsel hired an

investigator to interview Williams’ family members, and she was

successful in producing evidence to undermine their credibility.

            Williams asserts that the court should have inquired

of   him   whether    he     wished    to   continue      with       present      counsel.

Because this issue is raised for the first time on appeal, our

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review is for plain error.                United States v. Walker, 112 F.3d

163, 166 (4th Cir. 1997).

              If an attorney faces disciplinary action or criminal

charges based on his actions on behalf of a client, the attorney

cannot pursue the client’s interests free from concern for his

own.     United States v. Merlino, 349 F.3d 144, 152 n.3 (3d Cir.

2003).     Here, however, the dialogue between the court and the

prosecutor makes clear that no disciplinary action or criminal

charge would result.            Because there was no apparent conflict and

none arose during the remainder of the sentencing hearing, we

find   that    it    is   not    clear    from       the   record    that     any       error

occurred    in    not     inquiring      of    Williams     whether    he     wished       to

proceed with current counsel.                  Cf. United States v. Jones, 381

F.3d 114, 121 (2d Cir. 2004) (upholding court’s disqualification

of counsel where there was a risk that counsel would be called

to testify at defendant’s trial).                   Here, there was no conflict,

thus, no duty to inquire.                Although Williams asserts that he

is not claiming that counsel was ineffective, to the extent that

his claims challenge the adequacy of his representation, we find

that they are not properly before this court on direct review

because it does not conclusively appear from the record that

counsel     provided       ineffective            representation.           See     United

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006) (holding

that     claims     of    ineffective         assistance     of     counsel       are    not

                                              4
reviewable on direct appeal unless ineffectiveness conclusively

appears from the record).

            Williams also asserts that his Sixth Amendment rights

were violated when the court failed to grant a continuance to

provide him a reasonable opportunity to rebut the government’s

evidence.     We note that Williams had sufficient notice that the

Government was seeking a life sentence based on relevant conduct

of murder.         Moreover, at the initial sentencing hearing, the

government      presented          the        testimony      of         Detective      Licato

describing      statements         made        to    him     by      Williams’        father.

William’s    attorney       asked       for    a    one-week      continuance,        stating

that,   while      she    knew    the    government         intended       to    prove   that

Williams murdered Welshons, she did not know what the evidence

would be.     The court granted a continuance of one week, stating

that more time would be allowed if counsel needed it.                             Counsel

did   not   move    for    a     further      continuance         and    did    not   request

additional      time.          Rather,     after      the    week-long          continuance,

counsel was prepared to cross-examine Detective Licato and to

present     evidence      from      an     investigator        who       had     interviewed

Williams’ father—the primary witness against him.

            We find no plain error by the court in not granting a

continuance     that      was    never     requested.          See      United    States    v.

Walker, 112 F.3d 163, 166 (4th Cir. 1997).                         Further, our review



                                               5
of the sentencing hearing transcripts gives no indication that

counsel had inadequate time to prepare for Williams’ sentencing.

            Williams    also     contends     that    the    court     erred      by

allowing    hearsay    evidence    to    prove    relevant        conduct,    which

resulted in an increase in his sentence.              The traditional rules

of evidence are not applicable to sentencing proceedings.                       See

Fed. R. Evid. 1101(d)(3).         Thus, the district court may consider

any related and reliable evidence before it, including hearsay,

in establishing relevant conduct.             United States v. Bowman, 926

F.2d 380, 381 (4th Cir. 1991); see Fed. R. Evid. 1101(d)(3).

Moreover,   Crawford    v.   Washington,      541    U.S.   36,     50-51     (2004)

(holding that Confrontation Clause prohibits the admission at

trial of testimonial statements that are not subject to cross-

examination)    did    not     alter    the   general      rule    that      hearsay

evidence admitted at sentencing does not violate a defendant’s

confrontation rights.        See United States v. Bras, 483 F.3d 103,

109 (D.C. Cir. 2007); United States v. Beydoun, 469 F.3d 102,

108 (5th Cir. 2006); United States v. Chau, 426 F.3d 1318, 1323

(11th Cir. 2005) (same); United States v. Luciano, 414 F.3d 174,

179 (1st Cir. 2005) (same); United States v. Martinez, 413 F.3d

239, 243 (2d Cir. 2005) (same).

            Lastly,    Williams        contends     that    an      inappropriate

standard of proof was applied to find his involvement in the

murder of Welshons and that the evidence was insufficient to

                                        6
justify the increased sentence.                     He notes that some courts have

held     that    a    higher      level    of       proof       than     the       preponderance

standard        may   be    appropriate         where       there        is    a     significant

increase in the sentence.                 See United States v.                     Shonubi, 103

F.3d 1085, 1087-92 (2d Cir. 1997); United States v. Paster, 173

F.3d 206, 216 (3d Cir. 1999) (applying a “clear and convincing”

standard        where      findings       resulted         in     a      nine-level        upward

departure).

            This        court     has   consistently            upheld     the      use    of   the

preponderance standard for judicial fact-finding at sentencing.

See    United     States     v.    Moreland,         437    F.3d      424,     432    (4th      Cir.

2006).     This standard applies even where the defendant faces a

significant increase in the guideline offense level, as in the

application of the murder cross reference.                            See United States v.

Morris, 429 F.3d 65, 72 (4th Cir. 2005).                               Here, the district

court    thoroughly        analyzed       the       evidence       and    determined         that,

based on the evidence presented, it was more likely than not

that     Williams       committed       the     first       degree        murder      of     Robin

Welshons.        We find that this determination is supported by a

preponderance of the evidence, and the resulting sentence does

not     exceed    the      statutory      maximum          authorized         by     the   jury’s

verdict.         See 21 U.S.C. § 841(b)(1)(A) (2006) (providing for

maximum sentence of life); United States v. Benkahla, 530 F.3d

300, 312 (4th Cir. 2008), cert. denied, 129 S. Ct. 950 (2009);

                                                7
see also United States v. Perry, 560 F.3d 246, 258 (4th Cir.

2009) (holding that, after Booker, district courts may “continue

to make factual findings by a preponderance of the evidence,”

including relying on acquitted conduct).

            Accordingly,    we      affirm     the        district     court’s

determination, by a preponderance of the evidence, that Williams

committed first degree murder as conduct related to his drug

trafficking    offenses    of    conviction.         We    therefore     affirm

Williams’ life 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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