                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4792


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CLARENCE ALLEN TORRES, a/k/a C,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:09-cr-00110-1)


Submitted:   June 23, 2011                 Decided:   July 13, 2011


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stephen Stockton, ROBINSON & MCELWEE, PLLC, Charleston, West
Virginia, for Appellant.    R. Booth Goodwin II, United States
Attorney, Joshua C. Hanks, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Clarence Allen Torres pled guilty to possession with

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

in violation of 21 U.S.C. § 841(a) (2006), and was sentenced to

a   term    of     121     months’      imprisonment.       Torres    appeals    his

sentence, arguing that (1) he should be resentenced under the

Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124

Stat. 2372, which took effect on August 3, 2010, nearly a month

after he was sentenced, and (2) the sentence is unreasonable

because the district court determined the amount of crack for

which he was responsible by considering unreliable testimony.

We affirm.

                The Fair Sentencing Act does not indicate that it is

intended to be applied retroactively.                 Torres contends that “the

strong     opinions        voiced     by    Congressional    leaders,     and    the

unanimous        passage    of    the      FSA,”   permit   the   inference     that

Congress intended the law to apply to defendants with pending

appeals.        He also argues that the FSA should be deemed to fall

within     an    exception       to   the   Savings   Clause,     1   U.S.C.    § 109

(2006), for a complete procedural overhaul of an area of law.

However, this court has recently held that the Savings Clause

does apply and that the FSA is not retroactively applicable.

United States v. Bullard, ___ F.3d ___, No. 09-5214, 2011 WL

1718894, at *9-11 (4th Cir. May 6, 2011).

                                             2
             We     review       Torres’   sentence      for     procedural       and

substantive reasonableness.            Gall v. United States, 552 U.S. 38,

51 (2007).         Here, Torres claims only that the district court

failed to calculate his offense level correctly, a procedural

error.      We     review    the    district   court’s      calculation      of   the

quantity of drugs attributable to a defendant for clear error.

United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).                       “A

defendant’s base offense level under the Guidelines for drug

conspiracy        cases     is    determined   by     the      amount   of    drugs

“reasonably foreseeable to him within the scope of his unlawful

agreement.”       United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.

1996).

             Torres contends that Donta Brooks and Tracey Robbins,

co-conspirators who testified at his sentencing, were unreliable

witnesses.        The Government must establish the quantity of drugs

attributable to a defendant by a preponderance of the evidence

and may do so through the introduction of relevant and reliable

evidence.     United States v. Jones, 31 F.3d 1304, 1316 (4th Cir.

1994).   The district court recognized the problems with Brooks’

and Robbins’ testimony, discounting Brooks’ testimony entirely,

and accepting Robbins’ testimony as it related to Torres’ role

as a supplier of crack to Brooks, but not as to the amounts of

crack for which Torres was responsible.



                                           3
              To   make     that     determination,            the     district    court

considered the quantities of crack seized directly from Torres

and from Brooks, the crack equivalent of the money seized from

each of them, found that Torres had distributed “substantial

amounts” of crack on at least two or three other occasions, and

estimated     conservatively        that   Torres        was    responsible       for   at

least one kilogram of crack.               “A district court may properly

convert cash amounts linked credibly to the defendant’s purchase

or sale of narcotics” as long as the court does not double count

the proceeds and the drugs, and “[d]irect or hearsay testimony

of    lay    witnesses      . . .    can       provide     sufficiently        reliable

evidence of quantity.”            United States v. Sampson, 140 F.3d 585,

592 (4th Cir. 1998) (internal citations omitted).

              Assuming a price of $1300 per ounce and the use of a

“Detroit ounce” of 26 grams, which Robbins testified about, when

he was arrested Torres had the cash and crack equivalent of 793

grams   of    crack    in   his     possession.          At     his    arrest,    Brooks

possessed the cash and crack equivalent of 304 grams of crack.

Thus, the district court’s estimate of at least one kilogram of

crack was supported by these amounts alone, and we conclude that

the   court    did    not   clearly     err     in   finding          that   Torres     was

responsible for one kilogram of crack.                   Therefore, the court did

not commit any procedural error.                The within-Guidelines sentence



                                           4
was presumptively reasonable.            United States v. Allen, 491 F.3d

178, 193 (4th Cir. 2007).

              We   therefore    affirm       the   sentence    imposed     by    the

district    court.     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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