UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4044

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Louise W. Flanagan, 

Chief District Judge. (5:09-cr-00176-FL-1)

Submitted: April 29, 2011 Decided: May 19, 2011

Before DAVIS, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, 

Assistant Federal Public Defender, Eric J. Brignac, Research and 

Writing Specialist, Raleigh, North Carolina, for Appellant. 

George E. B. Holding, United States Attorney, Jennifer P. MayParker, Kristine L. Fritz, Assistant United States Attorneys, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Christopher Smith pled guilty to possession with 

intent to distribute five grams or more of cocaine base, in 

violation of 21 U.S.C. § 841(a)(1) (2006), and was sentenced to 

121 months in prison. He now appeals, challenging his sentence. 

We affirm. 

I

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. Seay, 553 F.3d 732, 742 

(4th Cir.), cert. denied, 130 S. Ct. 127 (2009). We first 

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 § 3553(a) 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. 

We next “consider the substantive reasonableness of 

the sentence imposed.” Id. At this stage, we “take into 

account the totality of the circumstances.” Id. “Regardless of 

whether the district court imposes an above, below, or withinGuidelines sentence, it must place on the record an 
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individualized assessment based on the particular facts of the 

case before it.” United States v. Carter, 564 F.3d 325, 330 

(4th Cir. 2009) (internal quotation marks omitted). We afford a 

presumption of reasonableness to a within-Guidelines sentence. 

United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see also

Rita v. United States, 551 U.S. 338, 347 (2007). 

II

According to Smith’s presentence investigation report, 

he was responsible for 224.15 grams of crack cocaine, for a base 

offense level of 32. See U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(4) (2009). This amount consisted of 25.7 grams of 

crack found in Smith’s vehicle when he was arrested and an 

additional seven ounces (198.45 grams) that a confidential 

informant reported he had purchased from Smith.

Smith objected to inclusion of the 198.45 grams as 

relevant conduct. At sentencing, the district court heard 

testimony from Officer Phillip Lewis that the confidential 

informant told Lewis that he had purchased seven or eight ounces 

of crack from Smith between 2007 and 2009. Lewis was aware that 

federal authorities had recordings of a suspected drug dealer 

stating that Smith also was selling drugs. Lewis testified that 

the informant had provided law enforcement officers with 

accurate information about both Smith and a third drug dealer. 
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Under Lewis’ direction, the informant set up a controlled buy of 

crack cocaine from Smith on January 30, 2009. 

Following Lewis’ testimony, the district court held 

that the Government had established by a preponderance of the 

evidence that the disputed 198.45 grams of crack cocaine was 

properly included as relevant conduct. Smith contends that this 

was error.

We review the district court’s factual finding for 

clear error. United States v. Jeffers, 570 F.3d 557, 570 (4th 

Cir.), cert. denied, 130 S. Ct. 645 (2009). Clear error occurs 

“when, although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.” In re Mosko, 515 

F.3d 319, 324 (4th Cir. 2008) (internal quotation marks 

omitted). 

We hold that the district court did not clearly err in 

finding that Smith was responsible for seven ounces, or 198.45 

grams, of crack. First, hearsay evidence is admissible at 

sentencing. Fed. R. Evid. 1101(d)(3). Also, the informant had 

proven to be reliable both with respect to information about 

Smith (for instance, the informant accurately described Smith’s 

car) and in connection with another drug investigation. 

Additionally, Smith was already suspected to be a drug dealer, 

as evidenced by the recorded statements. Finally, the informant 
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easily arranged the controlled purchase of one ounce of crack,*

In a related argument, Smith contends that the court’s 

reliance on hearsay evidence to determine relevant conduct 

violated Crawford v. Washington, 541 U.S. 36 (2004). In 

Crawford, the Supreme Court held that the Confrontation Clause 

prohibits the admission at trial of testimonial statements that 

are not subject to cross-examination. Id. at 50-51. We reject 

Smith’s argument, and note that none of the circuits to have 

considered Crawford following United States v. Booker, 543 U.S. 

220 (2005), have concluded that the rule announced in Crawford

applies at sentencing. See United States v. Katzopoulos, 437 

F.3d 569, 576 (4th Cir. 2006); United States v. Beydoun, 469 

F.3d 102, 108 (5th Cir. 2006); United States v. Chau, 426 F.3d 

1318, 1323 (11th Cir. 2005); United States v. Luciano, 414 F.3d 

174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 

239, 243 (2d Cir 2005).

suggesting that Smith previously had sold crack to the 

informant. Under these circumstances, it was not clear error 

for the district court to include the disputed amount of crack 

as relevant conduct. 

 * This transaction was not consummated because, prior to the 

scheduled purchase, officers conducted a traffic stop of Smith’s 

vehicle.
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III

Smith also argues that the district court committed 

procedural and substantive error when it allegedly failed to 

acknowledge his argument that a downward variance was warranted 

because of pending legislation that would have changed the 

powder-to-crack ratio in the Guidelines. The record refutes 

Smith’s claim. The court plainly rejected his request for a 

downward variance, stating, “I’m . . . not inclined to vary from 

the guidelines because I think you’ve gotten a free pass about 

every . . . way you’ve looked over the past few years.” The 

court noted that Smith had received very lenient sentences for 

drug offenses in state court. Further, Smith’s drug dealing had 

harmed the community, which needed protection from his actions, 

and there was a need to deter such conduct in the future. We 

are satisfied from the court’s explanation of the sentence, 

including the denial of the requested variance, that the court 

“considered the parties’ arguments and ha[d] a reasoned basis 

for exercising [its] own legal decisionmaking authority.’” 

Carter, 564 F.3d at 328 (quoting Rita, 551 U.S. at 356). 

IV

We hold that the arguments raised on appeal lack merit

and that Smith, who was sentenced at the bottom of his advisory 

Guidelines range of 121-151 months, failed to rebut the 
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presumption that his sentence is procedurally and substantively 

reasonable. We therefore affirm. 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