UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5155


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CECIL RAY, JR., a/k/a Esco,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:06-cr-00008-JPB-DJJ-1)


Submitted:    February 9, 2009              Decided:   March 13, 2009


Before TRAXLER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew M. Robinson, Covington, Kentucky, for Appellant. Sharon
L. Potter, United States Attorney, Thomas O. Mucklow, Assistant
United   States  Attorney,   Martinsburg,  West   Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Cecil     Ray,    Jr.,       appeals      his    jury   convictions        for

conspiracy to distribute in excess of fifty grams of cocaine

base, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (2006), and

distributing       or     aiding       and       abetting      the    distribution       of

approximately 1.95 grams of cocaine base within 1000 feet of

school    property,       in     violation         of    21     U.S.C.      §§ 841(a)(1),

(b)(1)(C),      860    (2006),       and   his    resulting      life      sentence.      He

asserts prosecutorial misconduct and error in the denial of a

motion to strike testimony, and challenges the sufficiency of

the evidence and the reasonableness of his sentence.                          We affirm.

              A claim of prosecutorial misconduct is reviewed “to

determine       whether   the    conduct         complained      of   so    infected     the

trial    with    unfairness      as    to    make    the      resulting     conviction     a

denial of due process.”              United States v. Scheetz, 

,

185    (4th     Cir.    2002)    (internal        quotation      marks      and   citation

omitted).        To prevail under this standard, Ray must show that

“the prosecutor’s remarks or conduct were improper and . . .

that     such     remarks       or    conduct        prejudicially         affected      his

substantial rights” so as to deprive him of a fair trial.                          

     that      the   Government      engaged    in

misconduct when it inquired of its own witness, Leroy Newell,

whether Ray’s counsel had represented him in the past.                            Defense

counsel had represented Newell twelve years previously.                                When

                                              2
the issue was raised before trial, Ray’s counsel assured the

court he had no memory of the representation and no information

that       would    be     pertinent     to   cross     examination.          Upon

consultation,       Ray    agreed   to   waive   any    possible    conflict      of

interest.

              As    the     district     court      noted,    the   Government’s

impeachment of its own witness was not inappropriate in this

case where it was surprised by Newell’s adverse testimony.                       See

United States v. Baldivid, 

, 1279 (4th Cir. 1977).

Furthermore, the inquiry into Newell’s possible bias and his

motivation for deviating from his expected testimony, including

his prior relationship with counsel, would have been permissible

were it not for the court’s concern that the potential prejudice

to   Ray    was    not   specifically    foreseen     and    discussed   prior    to

trial when Ray waived the possible conflict of interest.

              Nevertheless, even if Ray could show impropriety, he

cannot establish prejudice.              The court sustained the objection

to the question and there was no further inquiry.                        The court

instructed the jury that it should not consider an answer to any

question      to   which    an   objection    was    sustained.      See    United

States v. Williams, 

, 451 (4th Cir. 2006) (jury is

presumed to follow the instructions provided them).                  We conclude

the isolated inquiry by the Government did not prejudicially



                                          3
affect Ray’s substantial rights so as to deprive him of a fair

trial.

            Next, Ray claims the Government was allowed to present

evidence,     through     its    witness,        David      Taylor,    that     Ray   was

incarcerated.        We   conclude,         however,     that    Taylor’s      testimony

that he signed a statement at the jail in Ray’s presence did not

inform the jury that Ray was incarcerated.

            Ray    also      alleges         that     the     Government        elicited

testimony, without prior notification to the defense, about drug

transactions outside of the conspiracy period.                          A prosecution

witness,     Stephanie       Payton,        stated      before      trial     that    she

purchased    drugs    from      Ray    during     the    conspiracy     period.        At

trial, however, she said she purchased drugs from Ray “[a] long

while    ago.”       After      Payton       agreed      with    defense      counsel’s

suggestion    on   cross     examination         that    the     time-frame      of   her

purchases was around 2002, before the conspiracy period began,

Ray moved to strike the testimony.                    The district court denied

the motion.

            The    record       does    not      substantiate       Ray’s     claim   of

misconduct.          There      is     no     evidence       that     the     Government

circumvented the notice requirements of Fed. R. Evid. 404(b)

because the record does not indicate that the Government had

reason to believe Payton would testify about acts prior to the

conspiracy period.

                                             4
          Ray next contends the district court erred in denying

his motion to strike Payton’s testimony because admission of the

testimony constructively amended the indictment, resulting in a

fatal variance, and because the Government failed to provide

advance notice of the testimony.         A district court’s evidentiary

rulings are entitled to substantial deference and will only be

reversed for abuse of discretion.          United States v. Benkahla,

, 309 (4th Cir. 2008), cert. denied,               S. Ct.     ,

(U.S. Jan. 12, 2009) (No. 08-7428).

          As noted, the record does not support a claim that the

Government   failed   to   provide   notice   under   Rule   404(b).     We

conclude his variance argument is likewise without merit.               See

United States v. Randall, 

, 203 (4th Cir. 1999)

(only when the evidence presented at trial changes the elements

of the crime charged, such that the defendant is convicted of a

crime other than that charged in the indictment, does a fatal

variance occur).

          Ray next challenges the sufficiency of the evidence

supporting   his   conspiracy    conviction     and   claims    that    the

evidence, at most, established only that he sold drugs.                  “A

defendant challenging the sufficiency of the evidence faces a

heavy burden.”     United States v. Foster, 

, 245 (4th

Cir. 2007), cert. denied, 

(2008).              This court

reviews a sufficiency of the evidence challenge by determining

                                     5
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.      United

States v.    Collins,         

,      519    (4th       Cir.   2005);     see

Glasser v. United States, 

, 80 (1942).

             In order to support his conviction for conspiracy to

distribute and to possess with intent to distribute drugs, the

Government    had       to    prove:         “(1)      that   [Ray]       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).

             The Government presented evidence that Ray recruited,

organized,     and       supplied      drug    dealers         for    Martinsburg,         West

Virginia, that Ray sold drugs personally and through surrogates,

and   that        Ray     enforced       his        leadership        through       threats,

intimidation       and    violence.           As    evidenced        by    the   finding     of

guilt, the jury resolved any conflicts in testimony in favor of

the   Government,        determined      the        Government’s          witnesses   to     be

sufficiently       credible      to    support         the    verdict      of    guilty,    and




                                               6
otherwise found sufficient circumstantial and direct evidence of

guilt.   We likewise conclude the evidence was sufficient. 1

              Ray    also     challenges     the    reasonableness         of   his    life

sentence.          We   review      the   district         court’s    imposition      of   a

sentence under an abuse of discretion standard and are charged

with reviewing sentences for reasonableness.                           Gall v. United

States, 

, 594, 597 (2007).

              In     determining      whether      a       sentence   is   procedurally

reasonable, this court first assesses whether the district court

properly calculated the defendant’s advisory guidelines range.

then must assess whether the district court

failed   to    consider       the    18   U.S.C.       §   3553(a)    factors    and   any

arguments presented by the parties, treated the guidelines as

mandatory,         selected    a    sentence     based        on   “clearly     erroneous

facts,” or failed to sufficiently explain the selected sentence.

States v. Pauley, 

, 473 (4th Cir.

2007).   Finally, we review the substantive reasonableness of the

sentence,          “taking     into       account          the     ‘totality     of    the

circumstances.’”         

).

We afford sentences that fall within the properly calculated

     1
       Ray contends that the cumulative effect of the errors he
alleges deprived him of a fair trial.      Because the district
court did not err in denying Ray’s motion to strike Payton’s
testimony or in denying his Fed. R. Crim. P. 29 motion, there is
nothing to aggregate and the cumulative error doctrine does not
apply.


                                             7
guideline range a presumption of reasonableness.                          See 

; see also Rita v. United States, 

,

__,   127    S.    Ct.    2456,     2459,    2462     (2007)   (upholding      appellate

presumption).

              Ray asserts that the district court erred in failing

to    consider       the        racially     disproportionate         impact    of     the

statutory         sentencing       scheme     for      offenses    involving         crack

cocaine. 2        Ray points out that if his offense had involved fifty

grams of cocaine powder, instead of cocaine base, the statutory

maximum would have been twenty years instead of life.                            See 18

U.S.C. § 841(b)(1)(A), (C).                 However, this court has repeatedly

ejected challenges to the constitutionality of the sentencing

scheme under § 841.              See United States v. Perkins, 

,

518 (4th Cir. 1997); 

; United States v.

Fisher,      

,    99-100     (4th     Cir.   1995).      Moreover,     in

Kimbrough v. United States, 

(2007), while the

Supreme      Court       held     that     district    courts     are    permitted     to

disagree with the policies underlying the Sentencing Guidelines,

the       Court      neither         found        § 841’s      penalty      provisions




      2
       Ray was sentenced after November 1, 2007, the effective
date of Amendment 706, which lowered the base offense level for
most offenses involving crack cocaine. Ray’s base offense level
of thirty-six was calculated under the amended version of USSG
§ 2D1.1.



                                              8
unconstitutional nor overruled our previous holdings rejecting

constitutional challenges to the 100:1 ratio.

             Ray     also     claims    the        district     court        failed   to

adequately     consider       his    arguments        in   support      of     a   lower

sentence.      The record demonstrates that Ray’s sentence was not

procedurally       unreasonable.             The     district        court     properly

calculated     the    advisory      guideline       range,    and     considered      the

parties’ arguments and the § 3553(a) factors.                        The court simply

did not agree that Ray’s criminal history was relatively minor,

noting that his prior record included crimes involving firearms

and violence.        The court found that a lesser sentence was not

appropriate because of Ray’s “lack of amenability to law and

societal controls” and because the court considered him to be a

“considerable threat to the community.”                    At bottom, then, while

the district court considered Ray’s arguments, it acted well

within its discretion in declining to be persuaded by them.

             Because there was no procedural or substantive error

and because the sentence is within the statutory maximum, it is

not unreasonable.           Accordingly, we affirm Ray’s convictions 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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