UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4922
ANTONIO ESPINAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert E. Payne, District Judge.
(CR-95-39-A)
Argued: January 30, 1998
Decided: April 6, 1998
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Claude David Convisser, Alexandria, Virginia, for Appel-
lant. Thomas More Hollenhorst, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant, Antonio Espinal (Espinal), was convicted of two counts
of conspiracy to distribute or to possess with intent to distribute cer-
tain quantities of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846.
At sentencing, the district court determined that 5 to 15 kilograms of
cocaine were attributable to Espinal, thus resulting in a base offense
level of 32 under § 2D1.1(c)(4) of the United States Sentencing
Guidelines. The district court sentenced Espinal, within the applicable
range, to 188 months' imprisonment. On appeal, Espinal challenges
the district court's findings with respect to the quantity of cocaine rea-
sonably attributable to him. He also charges error in the district
court's failure to state its reasons, as required by 18 U.S.C.
§ 3553(c)(1), for its choice of sentence.
In reviewing a sentence imposed under the Sentencing Guidelines,
we give "due regard to the opportunity of the district court to judge
the credibility of the witnesses," and we must"accept the findings of
fact of the district court unless they are clearly erroneous." 18 U.S.C.
§ 3742(d).
We first consider the question of drug quantities. Although Espinal
concedes involvement with 3.037 kilograms, he maintains that the
district court erred in adding to that amount 9.972 kilograms seized
from drug courier Maria Paulino, and 2 kilograms, formed into the
shape of two shoes, which were seized from drug courier Felisa
Moran following a flight with Espinal.
When a dispute exists over the quantity of drugs reasonably attrib-
utable to a defendant, the district court must make an independent res-
olution of the factual issue during sentencing. See United States v.
Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993) (citing U.S.S.G.
§ 6A1.3(b)). Where, as here, the defendant's conduct occurred within
a conspiracy, the court may sentence the defendant for acts committed
by co-conspirators, so long as the acts were in furtherance of the con-
spiracy and reasonably foreseeable to the defendant. See U.S.S.G.
§ 1B1.3(a)(1)(B). The Government bears the burden of proving all
drug quantities by a preponderance of the evidence. See United States
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v. Estrada, 42 F.3d 228, 231 (4th Cir. 1994) (citation omitted).
Although accuracy is important, we have held that mathematical pre-
cision is not necessary and that a reasonable approximation of quan-
tity will suffice. See United States v. Uwaeme , 975 F.2d 1016, 1018-
19 (4th Cir. 1992).
In the present case, the district court's finding with respect to the
2 kilogram weight of the shoe-shaped objects may have been clearly
erroneous, as the district court failed to ascertain the size and gender
of the shoes before determining the weight of cocaine they contained.
However, even assuming that such error occurred, we find it unneces-
sary to vacate Espinal's sentence, since we cannot say that the district
court clearly erred in attributing to Espinal the 9.972 kilograms seized
from Maria Paulino. The district judge had the opportunity to hear the
evidence and to assess the credibility of witnesses. On the record
presented, it is reasonable to find, as the district court did, that the
9.972 kilograms were trafficked in furtherance of the criminal enter-
prise and that the shipment was foreseeable to Espinal as a member
of the conspiracy. We therefore affirm Espinal's sentence within the
5 to 15 kilogram range.
We next consider the district court's failure to provide reasons for
its choice of sentence. Pursuant to 18 U.S.C. § 3553(c)(1), where a
sentence exceeds 24 months the district court is required to state its
reasons "for imposing a sentence at a particular point within the
[applicable] range." Here, the parties agree that the district court erred
in failing to state reasons for the sentence imposed. However, because
Espinal failed to preserve the error by way of a timely objection at
trial, we are entitled to notice the error, under Fed. R. Crim. P. 52(b)
and United States v. Olano, 507 U.S. 725, 732-35 (1993), only if the
error is "plain" and affects the defendant's"substantial rights." Even
where such error is present, the decision to correct the error remains
"within the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error`seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.'"
Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S. 1,
15 (1985)).
We are not convinced that a failure to provide reasons under
§ 3553(c)(1) is the sort of error that requires correction even when
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forfeited by the defendant. Trial counsel is presumably aware of the
dictates of that provision, and it is incumbent upon counsel to object
and demand a statement of reasons during sentencing. In the absence
of such objection, we can perceive of no compelling reason to notice
the error.
The judgment is accordingly
AFFIRMED.
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