UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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sentence was procedurally unreasonable because an outdated 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 
3

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. 
4

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 
5

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