UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4633

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

JAMEL CHAWLONE BROWN,

 Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Big Stone Gap. James P. Jones, 

District Judge. (2:13-cr-00016-JPJ-PMS-1)

Submitted: May 28, 2015 Decided: June 19, 2015

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry Shelton, Federal Public Defender, Brian J. Beck, Assistant 

Federal Public Defender, Abingdon, Virginia, for Appellant. 

Anthony P. Giorno, Acting United States Attorney, Debbie H. 

Stevens, Special Assistant United States Attorney, Abingdon, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jamel Chawlone Brown appeals from his 110-month sentence 

entered pursuant to his guilty plea to possession of contraband 

in prison, in violation of 18 U.S.C. § 1791(a)(2) (2012), and 

possession of heroin, in violation of 21 U.S.C. § 844(a) (2012). 

On appeal, Brown raises numerous challenges to the calculation 

of the Guidelines range, as well as the sentence imposed. We 

affirm.

I.

Brown first argues that the district court erred by 

applying the cross-reference in U.S. Sentencing Guidelines 

Manual § 2P1.2(c) (2013), which directs courts to “apply the 

offense level from § 2D1.1” if the “object of the offense was 

the distribution of a controlled substance.” As a result of the 

application of this cross-reference, Brown’s guidelines range 

was increased from 37 to 46 months’ imprisonment, to 110 to 137 

months’ imprisonment. Brown contends that the application of 

the cross-reference was improper because he pleaded guilty to 

simple possession only.

We need not reach the merits of this argument because even 

assuming the district court improperly applied the § 2P1.2(c)

cross-reference, any such error was harmless. Applying the 

“assumed error harmlessness inquiry,” we may affirm a sentence 

without reaching the merits of an asserted guidelines error if 

2
(1) “the district court would have reached the same result even 

if it had decided the guidelines issue the other way,” and 

(2) “the sentence would be reasonable even if the guidelines 

issue had been decided in the defendant’s favor.” United States 

v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) 

(quoting United States v. Savillon-Matute, 636 F.3d 119, 123 

(4th Cir. 2011)). 

In this case, the first element of the inquiry is satisfied 

by the district court’s unambiguous statement that it would have 

imposed the same 110-month sentence even if it had decided the 

cross-reference issue in Brown’s favor. See J.A. 381 (“[W]ere 

the correct guideline range 37 to 46 months, I would have varied 

upward to the sentence I am prepared to impose.”). Proceeding 

to the second step of the inquiry, we must consider whether the 

110-month sentence would be substantively reasonable even if we 

were to assume that the district court erred in applying the 

cross-reference. In order to assess the substantive 

reasonableness of this sentence, we consider “the totality of 

the circumstances to see whether the sentencing court abused its 

discretion in concluding that the sentence it chose satisfied 

the standards set forth in § 3553(a),” according “due deference” 

to sentences that vary from the guidelines range. GomezJimenez, 780 F.3d at 383 (quoting United States v. MendozaMendoza, 597 F.3d 212, 216 (4th Cir. 2010); United States v. 

3
Engle, 592 F.3d 495, 504 (4th Cir. 2010)). Here, the district 

court provided a detailed explanation of why the particular 

facts of the case would justify a sentence of 110 months even if 

the cross-reference did not apply, citing, among other things, 

the seriousness of the offense and Brown’s criminal history. 

Because the record reflects that the district court carefully 

considered the requisite § 3553(a) factors in light of Brown’s 

individual circumstances and the arguments presented by the 

parties, we conclude that the 110-month sentence would be 

substantively reasonable even if the cross-reference did not 

apply. We therefore find that any error with respect to the 

§ 2P1.2(c) cross-reference was harmless and affirm its 

application without reaching the merits of Brown’s arguments.

II.

Brown next contends that the district court improperly used 

rote multiplication to calculate the applicable drug weight. 

According to Brown, drug estimates must err on the side of 

caution, and Brown contends that the court’s dry calculations 

ignored the conjecture and assumption involved in attributing 

Brown with responsibility for 24 bags of heroin, each containing 

.9 grams. 

In assessing a challenge to the district court’s 

application of the Guidelines, we review the district court’s 

factual findings for clear error. United States v. Alvarado 

4
Perez, 609 F.3d 609, 612 (4th Cir. 2010). The Government is 

required to prove a defendant’s drug quantity by a preponderance 

of the evidence. United States v. Carter, 300 F.3d 415, 425 

(4th Cir. 2002). The defendant bears the burden to demonstrate 

that the information contained in the presentence report is 

unreliable or inaccurate. United States v. Kiulin, 360 F.3d 

456, 461-62 (4th Cir. 2004). The district court is not required 

“to err on the side of caution in approximating drug quantity,” 

but need “only determine that it was more likely than not that 

the defendant was responsible for at least the drug quantity 

attributed to him.” Id. at 461 (emphasis in original).

We hold that the court did not clearly err in relying on 

co-Defendant Ashley Wilson’s testimony that, at Brown’s 

direction, she smuggled 24 bags of heroin into the prison and 

transferred three bags to Brown via a kiss. Prison officials 

later recovered two bags from Brown while he was in a dry cell. 

The bags contained a total of 1.8 grams of heroin. 

First, the district court’s methodology of multiplying the 

known number of balloons by the quantity contained in the two 

balloons that were seized and weighed was 

appropriate. Cf. United States v. Hickman, 626 F.3d 756, 769 

(4th Cir. 2010) (“[W]here courts have evidence of a number of 

transactions, they have been permitted to multiply that number 

by an average weight-per-transaction to reach an estimate.”). 

5
While Hickman recognized that district courts should err on the 

side of caution, Hickman was addressing a case “where evidence 

of unknown transactions was meager and offered virtually no 

guide as to the amounts that may have been involved.” Id. at 

770. Here, there was evidence, explicitly found credible by the 

district court, that there were 24 bags involved in the offense. 

Two of the bags contained a total of 1.8 grams of heroin, and 

Wilson testified that all the bags, which were delivered to her

together and were to be transferred secretly, appeared to 

contain the same amount of the same substance. Brown presented 

no evidence that the number of bags was incorrect or that the 

bags contained any other substance or weight. The district 

court concluded that all the bags contained the same amount and

substance and calculated a drug weight of 21.6 grams. Because 

the drug weight was calculated in an acceptable manner based on 

specific evidence regarding the number of balloons and their 

contents, the district court did not clearly err in determining 

the drug amount.

III.

Brown next contends that the district court incorrectly 

synthesized the whole of the record evidence when considering 

Wilson’s testimony. Brown avers that Wilson’s testimony was not 

credible and was contradicted by the record. As discussed 

above, the district court’s factual findings are reviewed for 

6
clear error. 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.” United States v. Harvey, 532 F.3d 

326, 336-37 (4th Cir. 2008) (citation and internal quotation 

marks omitted). In calculating drug amounts for sentencing 

purposes, “a sentencing court may give weight to any relevant 

information before it, including uncorroborated hearsay, 

provided that the information has sufficient indicia of 

reliability to support its accuracy.” United States v. 

Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). “[W]hen a 

district court’s factual finding is based upon assessments of 

witness credibility, such finding is deserving of the highest 

degree of appellate deference.” United States v. Thompson, 554 

F.3d 450, 452 (4th Cir. 2009) (internal quotation marks 

omitted). 

Our review of the record confirms that the Government 

established the relevant drug quantity by a preponderance of the 

evidence. Although the quantity was based primarily on the 

testimony of Wilson, the district court was able to view and 

examine Wilson. The court had before it her eyewitness 

testimony as to the number of bags and the similarity of the 

bags. Two of the bags were actually weighed and tested. There 

is no contradictory evidence in the record, and the facts Brown 

7
now relies upon were before the district court when it made its 

ruling. Thus, we find that the district court’s credibility 

finding was not clear error.

IV.

Brown next argues that the district court erred in applying 

a two-point leadership role adjustment under USSG § 3B1.1(c). 

Brown avers that such an enhancement is error as a matter of 

law, given that he was only convicted of simple possession of 

heroin for one transaction where he lacked any physical control 

over Wilson.

Contrary to Brown’s argument, the issue at hand is a 

factual one, and we review the district court’s assessment of a 

leadership role enhancement for clear error. See United 

States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011). The 

Sentencing Guidelines provide for a two-level adjustment where 

the defendant is found to be an organizer, leader, manager, or 

supervisor in a conspiracy that involves less than five 

participants. USSG § 3B1.1(c). In determining whether the 

defendant exercised control over at least one other 

participant, see United States v. Rashwan, 328 F.3d 160, 166 

(4th Cir. 2003), the court should consider: 

the exercise of decision making authority, the nature 

of participation in the commission of the offense, the 

recruitment of accomplices, the claimed right to a 

larger share of the fruits of the crime, the degree of 

participation in planning or organizing the offense, 

8
the nature and scope of the illegal activity, and the 

degree of control and authority exercised over others. 

USSG § 3B1.1(c) cmt. n.4. 

Here, the district court found that Brown organized the 

scheme and directed Wilson on her role. The court noted that 

Wilson was young and naïve and without motive other than to 

please Brown. Due to her submission, Brown dominated and 

controlled her activities. Intending to distribute the heroin, 

Brown arranged for the drugs to be delivered to Wilson and 

directed Wilson to bring the heroin to the prison and transfer 

it to him. The district court’s factual determination that 

Brown exercised control over at least one other participant in 

the conspiracy was well-supported by the record. Therefore, the 

district court did not clearly err in imposing the two-level 

enhancement for having a leadership role. 

V.

Finally, Brown contends that the district erred in 

determining that his crime was not motivated by drug addiction. 

District courts may consider drug addiction in choosing a 

reasonable sentence. United States v. Garcia, 497 F.3d 964, 972 

(9th Cir. 2007). However, here, the district court made a 

factual finding that Brown’s crime was not motivated by drug 

addiction. 

9
The record shows that Brown had negative drug tests while 

in prison and that the crime involved an amount much larger than 

a user would possess. Brown relies on an investigator’s 

testimony that drug tests will only be positive if the prisoner 

used the drug within a three-day period, and on Brown’s 

statement to the probation officer that he used heroin in prison 

due to an addiction. Nonetheless, given the amount of heroin 

involved, Brown’s negative drug tests, and Wilson’s statements 

regarding her knowledge of Brown’s drug use, it was not clear 

error for the district court to conclude that Brown was not 

motivated by drug addiction. 

VI.

Based on the foregoing, we affirm Brown’s sentence. 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

10