                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4787


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARCUS TERRELL BURNEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00068-D-1)


Submitted:   September 17, 2015           Decided:   October 1, 2015


Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


EJ Hurst II, Durham, North Carolina, for Appellant.    Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker, Yvonne
V. Watford-McKinney, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Marcus    Terrell    Burney     appeals    his    96-month    sentence    for

possession     with    intent   to    distribute      cocaine     base   (crack),

cocaine, and a quantity of hydrocodone combination product, in

violation of 21 U.S.C. § 841(a)(1) (2012).               On appeal, he raises

four issues, whether: (1) his right to due process was violated

by interviews and testimony obtained after a continuance motion

resulting     in   a   prejudicial     misjoinder      of   charges;     (2)   his

sentence was procedurally unreasonable because of drug weight

established by the testimony of a cooperating witness; (3) his

sentence     was   procedurally      unreasonable       because    an    outdated

conviction was used to enhance his criminal history; and (4) his

sentencing violated due process because his sentence was based

on acquitted and uncharged conduct found by a preponderance of

the evidence.      For the reasons that follow, we affirm.

     First, we normally review due process and misjoinder claims

de novo, see United States v. Shealey, 641 F.3d 627, 633 (4th

Cir. 2011) (providing review standard for due process claims);

see also United States v. Hawkins, 776 F.3d 200, 206 (4th Cir.

2015)   (providing       review      standard    for    misjoinder       claims);

however, Burney admits these claims are raised for the first

time on appeal, and we thus review them for plain error.                   United

States v. White, 405 F.3d 208, 215 (4th Cir. 2005) (providing

plain error review standard).           Our review of the record and the

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parties’ arguments reveals no plain error by the district court.

Id.

       Next, Burney contests the drug weight attributed to him for

purposes of sentencing.          More specifically, he alleges that the

cooperating witness’ testimony was insufficient to attribute 3.2

grams of crack to him and that the district court erred by using

11.7 grams of drug weight, due to packaging, rather than the

9.35 grams of the drugs alone.             We review criminal sentences for

reasonableness under a deferential abuse-of-discretion standard.

Gall v. United States, 552 U.S. 38, 51 (2007); United States v.

Rivera–Santana, 668 F.3d 95, 100 (4th Cir. 2012).                          The first

step    requires    this    court   to    ensure      that   the   district     court

committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Sentencing Guidelines

range, treating the Guidelines as mandatory, failing to consider

the 18 U.S.C. § 3553(a) (2012) 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, 552 U.S. at 51;

United States v. Carter, 564 F.3d 325, 328-29 (4th Cir. 2009).

       The second step is substantive reasonableness review, but

Burney    alleges   only     procedural       error     on   appeal    —   here,   the

incorrect calculation of the quantity of drugs attributable to

him.     We review this claim for clear error, United States v.

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Randall, 171 F.3d 195, 210 (4th Cir. 1999), and find none in the

district court’s finding of 3.2 grams of crack attributable to

Burney based on the cooperating witness’ testimony.                             (J.A. 237-

241).      Moreover,         Burney      admits     on    appeal       that    whether     the

district       court    incorrectly        counted       his    drug    packaging    weight

would not alter his offense level and thus any error would be

harmless.

       Third, Burney contends that the district court incorrectly

counted    one     of    his       prior    sentences,         which     he    asserts     was

completed       more    than       ten     years    before       the     instant    offense

commenced, in violation of U.S. Sentencing Guidelines Manual §

4A1.2(e)(2) (2013).             Burney concedes we review this issue only

for plain error, however, and we find none.                          White, 405 F.3d at

215.

       Finally, Burney objects to the fact that he was sentenced

based on acquitted conduct.                 We have held, however, that courts

may “consider acquitted conduct in establishing drug amounts for

the     purpose    of        sentencing,      so     long       as     the    amounts      are

established by a preponderance of the evidence.”                              United States

v. Perry, 560 F.3d 246, 258 (4th Cir. 2009); see also United

States    v.    Watts,       519   U.S.     148,    157    (1997)      (holding     that    “a

jury’s    verdict       of    acquittal      does    not       prevent    the    sentencing

court from considering conduct underlying the acquitted charge,

so long as that conduct has been proved by a preponderance of

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the evidence”).     The district court found the necessary facts

for   Burney’s   drug   weight   and   other     sentencing   factors   by   a

preponderance of the evidence.             Perry, 560 F.3d at 258.      Thus,

this claim fails.

      Accordingly, we affirm.          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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