UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4572

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARK ANDREW BERGER,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at 

Lynchburg. Norman K. Moon, Senior District Judge. (6:15-cr-00002-NKM-2)

Submitted: August 31, 2017 Decided: September 12, 2017

Before WILKINSON, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, 

for Appellant. Rick A. Mountcastle, Acting United States Attorney, Jean B. Hudson, 

Assistant United States Attorney, John R. Lystash, Third Year Law Intern, 

Charlottesville, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Mark Andrew Berger was found guilty of conspiracy to possess with intent to 

distribute 5 kilograms or more of cocaine and 280 grams or more of cocaine base, in 

violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012). He was sentenced to 270 months’ 

imprisonment. On appeal, Berger argues that the district court erred in holding him 

responsible, as relevant conduct under U.S. Sentencing Guidelines Manual § 1B1.3(a)(1) 

(2015), for the drug amounts distributed by three of his nephews who were part of the 

conspiracy. We affirm.

We review a sentence for reasonableness, applying a deferential abuse of 

discretion standard, Gall v. United States, 552 U.S. 38, 41 (2007), and we review “the 

district court’s calculation of the quantity of drugs attributable to a defendant for 

sentencing purposes for clear error,” United States v. Crawford, 734 F.3d 339, 342 (4th 

Cir. 2013) (internal quotation marks omitted). “Clear error is demonstrated when the 

reviewing court, considering all of the evidence, is left with the definite and firm 

conviction that a mistake has been committed.” United States v. Foster, 824 F.3d 84, 90 

(4th Cir. 2016) (ellipsis and internal quotation marks omitted). “The government must 

prove by a preponderance of the evidence the quantity of drugs for which a defendant is 

responsible.” United States v. McGee, 736 F.3d 263, 271 (4th Cir. 2013). 

“Under the Guidelines, the drug quantities that may be attributed to the defendant 

include the quantities associated with the defendant’s offense of conviction and any 

relevant conduct.” United States v. Flores-Alvarado, 779 F.3d 250, 255 (4th Cir. 2015). 

“Relevant conduct in conspiracy cases includes all reasonably foreseeable acts and 
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omissions of others in furtherance of the jointly undertaken criminal activity.” Id. (citing 

USSG § 1B1.3(a)(1)(B)) (internal quotation marks omitted). 

“[I]n order to attribute to a defendant for sentencing purposes the acts of others in 

jointly-undertaken criminal activity, those acts must have been within the scope of the 

defendant’s agreement and must have been reasonably foreseeable to the defendant.” Id.

(emphasis and internal quotation marks omitted). Sentencing courts are required “to 

make particularized findings with respect to both the scope of the defendant’s agreement 

and the foreseeability of the conduct at issue.” Id. at 256 (emphasis, brackets, and 

internal quotation marks omitted). 

In Berger’s presentence report the probation officer did find Berger responsible for 

the drug amounts distributed by his three nephews. At sentencing, however, the district 

court relied only on the drug distribution of Berger’s nephew Justin Berger (“Justin”) to 

determine Berger’s relevant conduct for purposes of drug weight. The district court 

specifically referenced Justin’s uncontroverted trial testimony for its finding that Berger 

should be held responsible for Justin’s distribution of over 58 kilograms of cocaine base;

Justin testified that he frequently converted cocaine into crack at Berger’s residence over 

a period in excess of three years and that Berger was compensated for the use of his 

residence in cocaine and cash. The district court found at sentencing that Berger was 

aware of Justin’s activities and that this conduct was within the scope of the conspiracy. 

Thus, we find no clear error in the district court’s drug weight finding, Crawford, 734 

F.3d at 342, and conclude that the Government sufficiently proved the drug quantity 

attributable to Berger by a preponderance of the evidence. McGee, 736 F.3d at 231. 
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Accordingly, we affirm the judgment below. 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