UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5034
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DORIS FOSTER,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-DLH-7)
Submitted: October 27, 2011 Decided: November 4, 2011
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Yurachek, THE LAW OFFICES OF MARK ALLEN YURACHEK, LLC,
Atlanta, Georgia, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Doris Foster of conspiracy to
possess with intent to distribute cocaine base (“crack”), in
violation of 21 U.S.C. § 846 (2006). The district court
sentenced Foster to 292 months of imprisonment and Foster now
appeals. For the reasons that follow, we affirm.
Foster first argues that the district court erred in
calculating the quantity of crack attributable to her under the
advisory Guidelines. We review a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); see also United States v.
Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct.
290 (2009). In so doing, we examine the sentence for
“significant procedural error,” including “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall, 552 U.S. at 51.
Moreover, “[t]he [g]overnment must prove by a
preponderance of the evidence the amount of controlled
substances attributable to a defendant.” United States v.
Carter, 300 F.3d 415, 425 (4th Cir. 2002). In reviewing the
district court’s calculations under the Guidelines, we “review
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the district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Manigan, 592 F.3d
621, 626 (4th Cir. 2010) (internal quotation marks and citation
omitted). We will “find clear error only if, on the entire
evidence, we are left with the definite and firm conviction that
a mistake has been committed.” Id. at 631 (internal quotation
marks and citation omitted).
Under the Guidelines in effect at the time of Foster’s
sentencing, the applicable offense level was thirty-six if the
defendant was held responsible for more than 1.5 kilograms but
less than 4.5 kilograms of crack. See U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1(a)(5), (c)(2) (2009).
Furthermore, in a drug conspiracy, the defendant is accountable
for the quantity of drugs with which she is directly involved
and “all reasonably foreseeable quantities of contraband that
were within the scope of the criminal activity that [she]
jointly undertook.” USSG § 1B1.3(a), cmt. n.2; see also United
States v. Lamarr, 75 F.3d 964, 972 (4th Cir. 1996) (“A
defendant’s Base Offense Level under the Guidelines is
determined by the amount of drugs ‘reasonably foreseeable to
[her] within the scope of [her] unlawful agreement.’”)
(citations omitted). We have thoroughly reviewed the record
and conclude that the district court did not err in calculating
the quantity of crack attributable to Foster under the
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Guidelines and, therefore, did not err in calculating the
advisory Guidelines range.
Foster next argues that the district court should have
applied proposed Amendment 750 to the Guidelines, which will
lower the offense levels for offenses involving crack and is to
take effect absent contrary action by Congress on November 1,
2011. The Fair Sentencing Act (“FSA”) became effective on
August 3, 2010, and raised the threshold amounts of crack that
trigger the statutory minimums for convictions under 21 U.S.C.
§ 841(a) (2006). See 21 U.S.C.A. § 841(b) (West Supp. 2011).
In response to the FSA, the Sentencing Commission on April 28,
2011, proposed Amendment 750 to the Guidelines, which will lower
the offense levels applicable to crack offenses and will apply
retroactively, to become effective on November 1, 2011.
However, regardless of pending Guidelines amendments,
a sentencing court “shall use the Guidelines Manual in effect on
the date the defendant is sentenced.” USSG § 1B1.11(a) (2010).
Here, Foster was sentenced on September 22, 2010, and the
district court employed the Guidelines Manual in effect at that
time. Therefore, the court correctly calculated Foster’s
offense level. While Amendment 750 may apply to Foster’s
conviction after its effective date, “[i]t is . . . for the
district court to first assess whether and to what extent
[Foster’s] sentence may be thereby affected, and that court is
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entitled to address this issue either sua sponte or in response
to a motion by [Foster].” United States v. Brewer, 520 F.3d
367, 373 (4th Cir. 2008) (refusing to apply retroactive
amendment in the Guidelines on direct appeal).
Accordingly, we affirm the judgment of the district
court. However, this decision is rendered without prejudice to
Foster’s right to pursue a sentence reduction in the district
court pursuant to 18 U.S.C. § 3582(c)(2) (2006). We deny
Foster’s motions to file pro se supplemental briefs. 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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