                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4109



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RAYMOND ANTWANE WINSTON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, Chief
District Judge. (3:06-cr-00170-JRS)


Submitted:   January 10, 2008          Decided:     February 11, 2008


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Amy L. Austin,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant.   Chuck Rosenberg, United States Attorney, Olivia N.
Hawkins, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           A jury convicted Raymond Winston of possession with

intent to distribute five grams or more of cocaine base (“crack”),

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2000).         The

district   court   sentenced    Winston    to   eighty-four   months’

imprisonment, a term of imprisonment that is within the properly

calculated sentencing guidelines range and six months from the

bottom of that range.     Winston timely appealed, contending the

district court improperly commented on the Government’s evidence

and issued an erroneous supplemental instruction in response to a

jury question and imposed a procedurally unreasonable sentence. We

affirm.

           The evidence adduced at trial indicated Winston possessed

6.18 grams of crack, an amount the Government’s narcotics expert

testified was inconsistent with personal use.     The jury submitted

a written question and the foreperson posed a follow-up question to

the district court asking why the indictment cited five grams of

crack and inquiring whether a certain quantity of crack made a

possession with intent to distribute charge, as opposed to a simple

possession charge, mandatory.   The district court told the jury it

may consider the quantity of drugs alleged by the Government, “as

was indicated by one of the witnesses,” and determine whether that

quantity “would be some indicia of intent to distribute rather than

for personal use or possession.”        Winston asserted the court’s


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reference       to   the     Government’s      narcotics     expert     improperly

influenced the jury’s verdict and necessitates a new trial under

Fed. R. Crim. P. 33.         The district court denied Winston’s Rule 33

motion    by    written     order,   finding   its   response      to   the   jury’s

questioning was neutral and accurate.

               This court reviews the denial of a Rule 33 motion for

abuse of discretion,         United States v. Adam, 70 F.3d 776, 779 (4th

Cir. 1995), and a district court’s decision to respond to a jury’s

question and the form of that response are likewise matters of that

court’s discretion.         United States v. Smith, 62 F.3d 641, 646 (4th

Cir. 1995).       It is within a district court’s province to draw the

jury’s attention to evidence the court considers important and to

comment    upon      this   evidence   whenever      the   court    considers       it

necessary.       See United States v. Tello, 707 F.2d 85, 88 (4th Cir.

1983).      A    district    court’s    supplemental       instruction    must      be

reasonably responsive to the jury’s question and address the

inquiry fairly and adequately.          See United States v. Martinez, 136

F.3d 972, 977 (4th Cir. 1998).

               We find no abuse of discretion.         The district court did

not   exceed     “its     inherent   limitations”     in    commenting        on   the

evidence, see Tello, 707 F.2d at 88, and the court correctly noted

the jury could find Winston possessed 6.18 grams of crack with

intent to distribute.          See United States v. Lamarr, 75 F.3d 964,

973 (4th Cir. 1996) (finding 5.72 grams of crack consistent with


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distribution).         The district court properly instructed the jury

that the responsibility of determining whether Winston possessed

this quantity of crack with intent to distribute resided not in the

court but in the jury as factfinder.                  We therefore conclude the

district court did not unfairly influence the jury through its

response to the jury’s questioning.

              Winston    also      asserts   the   sentence        was   procedurally

unreasonable because the district court failed to give an adequate

statement of reasons for the eighty-four-month sentence in open

court.   We will affirm the sentence imposed by the district court

as long as it is within the statutorily prescribed range and is

reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).

A sentence may be unreasonable for both substantive and procedural

reasons.      United States v. Moreland, 437 F.3d 424, 434 (4th Cir.),

cert. denied, 126 S. Ct. 2054 (2006).                   A district court must:

(1) properly calculate the guidelines range; (2) determine whether

a sentence within that range serves the factors under 18 U.S.C.A

§   3553(a)    (West    2000    &   Supp.    2006);    (3)   implement       mandatory

statutory limitations; and (4) explain its reasons for selecting a

sentence,      especially      a    sentence    outside      the    range.     United

States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126

S. Ct. 2309 (2006).             A sentence within a properly calculated

advisory guidelines range is presumptively reasonable. Id. at 457;




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see Rita v. United States, 127 S. Ct. 2456 (2007) (upholding

presumption of reasonableness to within-guidelines sentence).

                 Winston    did    not   object    to    the    presentence     report’s

findings or sentencing guidelines calculations, and Winston did not

contend      a    variance    sentence         below    the    guidelines     range   was

warranted; he asserted a sentence at the bottom of the range was

appropriate in light of his history and characteristics.                              The

district court considered this assertion, and the court’s written

statement of reasons makes clear it consulted the § 3553(a) factors

in selecting the sentence.               Sentencing was “conceptually simple,”

and    the       district    court       was    not     required     “to     write    more

extensively.”         See Rita, 127 S. Ct. at 2469; United States v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006) (holding district court

need not explicitly reference § 3553 or discuss every factor on

record).         The sentence was presumptively reasonable, and Winston

fails to rebut this presumption when measured against the § 3553(a)

factors.         United States v. Montes-Pineda, 445 F.3d 375, 379 (4th

Cir. 2006), cert. denied, 127 S. Ct. 3044 (2007).

                 Accordingly, we affirm Winston’s conviction and 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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