UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4667


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SANCHEZ HUDSON, a/k/a Chez,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:09-cr-00039-FDW-DCK-14)


Submitted:   October 27, 2011               Decided:   January 23, 2012


Before KING, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney, Amy E.
Ray,   Assistant  United  States   Attorney,   Asheville,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           After a jury trial, Sanchez Hudson was convicted of

one count of conspiracy to distribute and possess with intent to

distribute crack cocaine, in violation of 21 U.S.C. §§ 841, 846,

851 (2006), and sentenced to 384 months’ imprisonment.                                Hudson

argues that the district court erred in (1) denying his motion

to dismiss under the Speedy Trial Act, (2) admitting evidence of

his    prior   bad      acts   and       (3)       permitting       a     testifying        law

enforcement officer to remain in the courtroom throughout the

trial.    He also claims the evidence was insufficient to support

the conviction.       In addition, Hudson contends there were several

errors at sentencing.          Finding no error, we affirm.

           This       court    reviews            de   novo     a       district     court’s

interpretation of the Speedy Trial Act, while it reviews any

related   factual     findings       for      clear      error.         United    States    v.

Stoudenmire,     

,   63       (4th     Cir.    1996).       The    relevant

provision of the Act provides that in “any case in which a plea

of not guilty is entered, the trial of a defendant . . . shall

commence within seventy days” from the later of (1) the filing

date of the information or indictment or (2) the defendant’s

initial   appearance       before        a    judicial        officer.       18    U.S.C.A.

§ 3161(c)(1)      (West    2000      &       Supp.     2011).           Generally,     if     a

defendant is not brought to trial within seventy days, the court

must   dismiss    the     indictment         on    the    defendant’s       motion.         18

                                              2
U.S.C.      §   3162(a)(2)     (2006).      “The    requirement      of    dismissal,

however, is not absolute.”               United States v. Wright, 

, 148 (4th Cir. 1993).                Certain delays are excludable when

computing        the   time    within     which    a     defendant’s      trial    must

commence.         18 U.S.C.A. § 3161(h)(1)-(8); 

.     One of the delays excluded from the “speedy trial clock”

is    any    “delay    resulting    from    any    pretrial      motion,    from    the

filing of the motion through the conclusion of the hearing on,

or    other     prompt   disposition       of,    such   motion[.]”        18     U.S.C.

§ 3161(h)(1)(D).         “The plain terms of the statute . . . exclude

all time between the filing of and the hearing on a motion

whether that hearing was prompt or not.”                     Henderson v. United

States, 

, 326 (1986).                 This court has held that, in

a multi-defendant case, a time period excluded for one defendant

is excludable for all defendants in the same action.                              United

States v. Jarrell, 

, 316 (4th Cir. 1998); United

States v. Sarno, 

, 622 (4th Cir. 1994).

                Based on numerous pre-trial motions filed by Hudson

and his co-defendants, we find that Hudson’s speedy trial clock

had    not      completely    run   when    counsel      filed   a   motion       for   a

continuance on June 3, 2009.               We further note that the district

court specifically found that counsel needed the continuance to

prepare for trial.            This is a permissible factor for the court

to consider when deciding whether to grant a continuance beyond

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the    seventy    day      period.          See       18   U.S.C.       § 3161(h)(7)(B)(iv).

Accordingly,         the   district        court        did      not   err    in     denying     the

motion to dismiss.

               Hudson      also       claims      the         district       court       erred   in

admitting as intrinsic evidence testimony from some of Hudson’s

co-conspirators regarding drug transactions that occurred prior

to    the     beginning        date   of    the       conspiracy        as    charged      in    the

indictment.          He    contends        the    court       should     have       analyzed     the

proposed testimony under Rule 404(b) of the Federal Rules of

Evidence and given the jury a limiting instruction.

               The district court’s admission of evidence is reviewed

for abuse of discretion.                 United States v. Lighty, 

,

351 (4th Cir.), cert. denied, __ S. Ct. __ (Oct. 17, 2011) (No.

10-1010, 10A443).              A district court “abuses its discretion when

it     acts     arbitrarily           or    irrationally,              fails        to    consider

judicially       recognized           factors         constraining           its     exercise     of

discretion or relies on erroneous factual or legal premises.”

United      States    v.       Malloy,     

,     177   (4th     Cir.   2009)

(internal quotation marks and citation omitted).                                   Rule 404(b) of

the Federal Rules of Evidence prohibits the admission of other

wrongs or bad acts solely to prove a defendant’s bad character.

This rule only applies to acts extrinsic to the crime charged.

United States v. Basham, 

, 326 (4th Cir. 2009).

Acts    intrinsic         to    the   crime       are      not    subject      to     Rule   404’s

                                                  4
restrictions.      

uncharged conduct is not other

crimes evidence subject to Rule 404 if the uncharged conduct

arose out of the same series of transactions as the charged

offense, or if [evidence of the uncharged conduct] is necessary

to complete the story of the crime on trial.”                     

marks).        We have also held that “[o]ther criminal acts

are intrinsic when they are inextricably intertwined or both

acts are part of a single criminal episode or the other acts

were   necessary    preliminaries     to     the   crime    charged.”     United

States v. Chin, 

, 88 (4th Cir. 1996).                  In other words,

“[e]vidence is intrinsic if it is necessary to provide context

relevant to the criminal charges.”                 

(internal quotation marks omitted).

            The district court did not abuse its discretion in

ruling that evidence of prior crack cocaine transactions with

co-conspirators was intrinsic to the charged offense.                   Contrary

to Hudson’s argument, not all pre-conspiracy drug transactions

need to be treated as extrinsic to the charged conspiracy.                    In

United States v. Kennedy, 

, 885 (4th Cir. 1994), we

noted that it would be error to assume that all evidence that

falls outside the charged conspiracy would be “other crimes”

evidence.    In Kennedy, we concluded that evidence of prior drug

transactions    with     persons   not   charged     in    the   indictment   was

necessary predicate evidence establishing the context for the

                                         5
charged    conspiracy.              In   the       case       before          us,   the     challenged

testimony      showed        when    the      participants              first       started    working

together, what roles they had in the conspiracy and how typical

transactions          were    first        executed.               This        evidence       provided

context for the jury to better understand the nature of the

conspiracy.           See, e.g., United States v. Lokey, 

,

834 (5th Cir. 1991) (evidence of drug deals consummated prior to

the charged conspiracy was not extrinsic because it showed how

the conspiracy came about, how it was structured and how the

defendant became a member); United States v. Torres, 

,     727    (2d     Cir.        1975)     (evidence            showing          background       and

development of a conspiracy that predates the charges in the

indictment is admissible).

               Hudson       further      contends         that          the    evidence       was    not

admissible       under       Rule     403      because         the       probative          value    was

substantially         outweighed         by    the      danger          of     unfair       prejudice.

While    the     evidence       may      have       been       prejudicial,            it     was    not

unfairly so, as it described events similar to those events that

occurred during the course of the conspiracy.                                      The jury did not

hear intrinsic evidence that was not typical of the type of

evidence       that    is    necessary         to      show        a    drug       conspiracy.        We

further note that the jury was instructed that in order to find

Hudson    guilty       of     the     conspiracy,             it       had    to    find     beyond    a

reasonable       doubt       that     two     or       more    persons          entered       into    an

                                                   6
unlawful   agreement     that    existed         at   the       time     alleged     in   the

indictment.      Accordingly, we discern no error in the district

court’s decision to admit this evidence.

            Hudson    raises    two     points        of    error        related     to   the

district   court’s     decision       to    allow     a     testifying         witness     to

remain in the courtroom during the trial.                         Prior to trial, the

Government gave notice under Rule 16(a)(1)(G) of the Federal

Rules of Criminal Procedure, that it intended to offer Detective

Eric Duft of the Charlotte Mecklenburg Police Department and the

Drug   Enforcement     Administration’s            Task         Force,    as   an     expert

“regarding methods, techniques, tools, distribution methods, and

common code and slang language utilized by individuals involved

in   narcotics     trafficking.”           The    notice         provided      a    detailed

description   of     Duft’s    qualifications          and       indicated         that   Duft

would give an opinion regarding quantities of cocaine and crack

cocaine    typically    possessed          by    users      versus       the   quantities

possessed by distributors.             It also indicated that Duft would

testify as to the tools of the drug trade, including the use of

multiple cell phones, phones subscribed to other persons, common

concealment      methods        and         modes          of      distribution           and

transportation.

            Hudson argues that the Government’s Rule 16 notice was

inadequate because the notice did not contain a written summary

describing Duft’s opinions and the bases and reasons for those

                                            7
opinions.           Under    Rule      16(a)(1)(G),       “[a]t       the     defendant’s

request, the government must give to the defendant a written

summary of any [expert] testimony that the government intends to

use[.]”       In this instance, Hudson did not request a written

summary.      Accordingly, we conclude there was no error in this

regard.       See United States v. Garza, 

, 1199-200

(10th Cir.         2009)    (right     to   pre-trial    notice       not    violated    if

defendant did not make a request for such notice); United States

v. Johnson, 

, 924 (8th Cir. 2000) (notice required

only if defendant makes a request).

              In    addition,     Hudson     argues     that    the    district        court

erred by permitting Duft to sit through the trial prior to his

testimony.         Under Fed. R. Evid. 615, the district court “must

order witnesses excluded” if requested by one of the parties,

“[o]r the court may do so on its own.”                    A witness may remain if

it shown that their “presence . . . [is] essential to presenting

the party's claim or defense.”                   

decision to

permit    a   witness       to   remain      during     trial   despite        a     request

otherwise is reviewed for abuse of discretion.                          See Cooper v.

United States, 

, 14 (4th Cir. 1979), abrogated on

other grounds, Mabry v. Johnson, 

(1984).

              We    review       for    plain    error     because          Hudson    never

requested that the district court sequester Duft.                            In order to

satisfy the plain error standard Hudson must show:                           (1) an error

                                             8
was made; (2) the error is plain; and (3) the error affects

substantial rights.        United States v. Olano, 

, 732

(1993).      We   conclude   that   there      was      no    error      and   that    the

district court did not abuse its discretion in allowing Duft to

stay in the courtroom during the trial. *

           Hudson also argues that the “cumulative effect” of the

evidentiary errors was unfairly prejudicial.                        

.    Based on our conclusions regarding Hudson’s evidentiary

challenges, however, his “cumulative effect” argument is without

merit.

           Next, Hudson contends the evidence was insufficient to

support    the      conviction   based      on     his        assertion        that    the

testifying    co-defendants      were    not     credible       and      there   was    no

evidence     that     he   had   anything        more        than    a    buyer/seller

relationship with the drug dealers.


*
  In his reply brief, Hudson argues for the first time that
Duft’s testimony was inadmissible as a lay witness providing
opinion testimony, citing United States v. Johnson, 

(4th Cir. 2010). Because Hudson did not raise this issue in his
initial brief, this court will not consider it.       See United
States v. Brooks, 

, 556 n.11 (4th Cir. 2008).     In
any event, we note that even if Duft’s testimony was improperly
admitted, any error was harmless. See United States v. Curbelo,

, 278 (4th Cir. 2003) (“[F]or nonconstitutional
errors, the Government must demonstrate that the error did not
have a substantial and injurious effect or influence in
determining the jury's verdict.”) (internal quotation marks and
citation omitted).     Based on the collective testimony of
Hudson’s co-defendants, we find that Duft’s testimony did not
substantially influence the jury’s verdict.


                                        9
              “A    defendant      challenging         the    sufficiency    of    the

evidence faces a heavy burden.”                  United States v. Foster, 

, 245 (4th Cir. 2007).               This court reviews a sufficiency

of the evidence challenge by determining whether, viewing the

evidence   in      the   light    most   favorable       to   the    Government,   any

rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt.                 

reviews both

direct and circumstantial evidence, and gives the Government all

reasonable inferences from the facts.                   United States v. Harvey,

, 333 (4th Cir. 2008).                  We will uphold the jury’s

verdict if substantial evidence supports it, and will reverse

only in those rare cases of clear failure by the prosecution.

.

              To   support       Hudson’s    conviction        for    conspiracy   to

distribute and to possess with intent to distribute drugs, the

Government had to prove beyond a reasonable doubt:                          “(1) that

[Hudson] entered into an agreement with one or more persons to

engage in conduct that violated 21 U.S.C. §[] 841(a)(1) . . .;

(2) that [he] had knowledge of that conspiracy; and (3) that

[he] knowingly and voluntarily participated in the conspiracy.”

United States v. Mastrapa, 

, 657 (4th Cir. 2007).

              In United States v. Reid, 

, 317 (4th Cir.

2008),   we     held     that    “[e]vidence      of    a     buy-sell   transaction

coupled with a substantial quantity of drugs, would support a

                                            10
reasonable      inference     that    the     parties    were   coconspirators.”

(internal quotation marks and alteration omitted).                       Similarly,

continued relationships and repeated drug transactions between

parties are indicative of a conspiracy, particularly when the

transactions involve substantial amounts of drugs.                       

testimony showed that Hudson purchased substantial amounts

of crack cocaine and was later observed selling crack cocaine to

street level users.         Clearly, the evidence supported the finding

that   Hudson    was   part    of    a   larger   conspiracy     to   sell      crack

cocaine in his area.

            Insofar    as     Hudson     contends       the   evidence    was     not

credible, we note that credibility determinations are within the

sole province of the jury and are not reviewable.                     See United

States v. Kelly, 

, 594 (4th Cir.), cert. denied, 

(2010).            Hudson fails to show how the relevant

testimony was not believable.

            Hudson next raises five challenges to his sentence.

He contends that the district court erred in finding that he was

responsible for 4.5 kilograms of crack cocaine for sentencing

purposes.     This court reviews a drug quantity finding for clear

error.    United States v. Kellam, 

, 147 (4th Cir.

2009).      Under the clear error standard of review, this court

will reverse only if “left with the definite and firm conviction

that a mistake has been committed.”                United States v. Jeffers,

                                         11


, 570 (4th Cir. 2009) (internal quotation marks and

citation    omitted).          At     sentencing,     the   Government     need    only

establish the amount of drugs involved by a preponderance of the

evidence.       

our review of the record, we conclude

that the court did not err in this instance.

            Hudson also contends the enhancement to his Guidelines

offense     level      for     obstruction       of    justice     was    in     error.

According to U.S. Sentencing Guidelines Manual § 3C1.1 (2009), a

defendant’s      base       offense    level    is    increased    two    levels    for

obstruction of justice if “the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration

of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and . . . the

obstructive conduct related to (A) the defendant’s offense of

conviction . . .; or (B) a closely related offense[.]”                           USSG §

3C1.1.     The application notes for § 3C1.1 specifically include

the commission of perjury by a defendant as grounds for the

enhancement.          See USSG § 3C1.1 cmt. n.4(b).                For purposes of

§ 3C1.1, the Supreme Court has defined perjury in the following

manner: “[a] witness testifying under oath or affirmation” who

gives “false testimony concerning a material matter with the

willful    intent      to    provide    false   testimony,       rather   than     as   a

result     of   confusion,          mistake,    or    faulty   memory.”          United

States v. Dunnigan, 

, 94 (1993).

                                           12
            The    district    court     did    not   err    in    finding        Hudson

committed perjury during one of his co-conspirator’s trial.                          The

district    court     noted    five     specific      instances         where     Hudson

perjured himself and added that the court was an “eyewitness” to

the perjury.        Several of Hudson’s statements—relating to the

credibility of Hudson’s co-defendants, the terminology used to

describe crack, and the amount of crack typical of a user versus

a distributor—were clearly intended to draw the jury’s attention

away from evidence that showed that Hudson bought crack cocaine

for   the   purpose   of    distribution.         Moreover,       the    court     found

specifically that Hudson had done more than merely misspeak and

at    sentencing,     the     government       explained     why        the     perjured

statements were material.            Accordingly, the court did not err in

applying the enhancement.

            Hudson    notes     that     the     Sentencing       Guidelines        were

amended     just    two     months    after     sentencing        to     reflect     the

statutory amendments brought about by the Fair Sentencing Act.

He contends that the amendments to the Guidelines would have

lowered his Guidelines sentence.               We conclude, however, that the

district court did not err by applying the Guidelines in effect

on the date of Hudson’s sentencing.                See USSG § 1B1.11(a).             We

note that our decision is without prejudice to Hudson’s right to

pursue a sentence reduction in the district court pursuant to 18

U.S.C. § 3582(c)(2).

                                         13
              Hudson also contends under United States v. Simmons,

(4th Cir. 2011) (en banc) that the district court

erred    by    enhancing       his     statutory         sentence        based   on   the

Government’s 18 U.S.C. § 851 (2006) notice, indicating Hudson

had a prior felony drug conviction.                         As the court noted at

sentencing,     Hudson’s       argument       is    moot.      Hudson’s      Guidelines

sentence was so high that his statutory minimum sentence, with

or without the § 851 notice, had no effect on his sentence.

              Hudson’s 384 month sentence was within the advisory

Guidelines.      Hudson contends, however, the sentence is too long

when compared to sentences received by his co-defendants.                              He

also contends that it was unreasonable for someone who was not a

major drug trafficker to receive such a lengthy sentence.                               A

sentence      within     the   Guidelines          is   presumptively       reasonable.

United States v. Mendoza-Mendoza, 

, 216-17 (4th Cir.

2010).        The      district      court        informed    Hudson       why   it   was

inappropriate       to    compare     Hudson’s          sentence    to    the    sentence

received by some of his co-defendants.                       The court noted that

some of Hudson’s co-defendants received more favorable sentences

because they pled guilty and/or cooperated with law enforcement.

In addition, Hudson’s sentence was within the Guidelines, which

was based on the quantity of drugs Hudson was found responsible

for during the course of the conspiracy, his perjury and his

extensive      criminal     history.          Hudson      fails     to    overcome    the

                                             14
presumption     of     reasonableness        for      his    within-Guidelines

sentence.

            Accordingly,      we   affirm   the    conviction   and   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




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