                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4043



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


SHANNON CAVE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:03-cr-00157-jct)


Submitted:   September 27, 2006           Decided:   October 27, 2006


Before NIEMEYER and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Onzlee Ware, WARE & HILL, L.L.P., Roanoke, Virginia, for Appellant.
John L. Brownlee, United States Attorney, R. Andrew Bassford,
Assistant United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Shannon    Cave     appeals     his   conviction     by   a     jury   for

possession with intent to distribute more than fifty grams of

cocaine base in violation of 21 U.S.C. § 841(a)(1) (2000).                        The

district court sentenced Cave to life imprisonment.                      On appeal,

Cave’s attorney filed a formal brief, raising two grounds of error.

Cave then filed a pro se motion to strike the formal brief and a

motion for leave to file a pro se supplemental brief.                       We have

considered    the    claims    in   the    formal     brief   and    the    pro    se

supplemental brief.      Finding no merit to the claims, we affirm.

           First, Cave challenges the sufficiency of the evidence

against him.        A defendant challenging the sufficiency of the

evidence faces a heavy burden.            See United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).                 In reviewing a sufficiency

challenge, “[t]he verdict of a jury must be sustained if there is

substantial    evidence,      taking    the    view   most    favorable     to    the

Government, to support it.” Glasser v. United States, 315 U.S. 60,

80 (1942).    This court “ha[s] defined ‘substantial evidence,’ in

the context of a criminal action, as that evidence which ‘a

reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.’”     United States v. Newsome, 322 F.3d 328, 333 (4th Cir.

2003) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996)).


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             Cave claims the evidence was insufficient because the

evidence does not show he had knowledge that a box he dropped from

a window contained cocaine, or that he intended to distribute the

cocaine.      However, taken in the light most favorable to the

Government, there was ample evidence to convict Cave.            This court

will uphold the jury’s verdict if there is substantial evidence to

support it, and will reverse only in those rare cases “where the

prosecution’s    failure   is   clear.”      Beidler,   110   F.3d   at   1067

(quoting Burks v. United States, 437 U.S. 1, 17 (1978)).             Trooper

Brannock saw Cave drop the box later determined to contain cocaine

base out of a bathroom window.            Sherwood Barksdale, a prisoner

subsequently incarcerated with Cave, testified that Cave admitted

that he transported the cocaine base to the residence and had

dropped it out the bathroom window.         Finally, a Government expert

testified that the amount and packaging of the cocaine base in the

box was consistent with distribution and inconsistent with personal

use.    We find that viewing all the evidence together, there was

more than sufficient evidence for a reasonable finder of fact to

conclude that Cave was guilty.

             Cave also argues the district court erred when it denied

his motion for a new trial based on the perjured testimony of

fellow prisoner Jesse Hairston. Pursuant to Rule 33 of the Federal

Rules   of   Criminal   Procedure,   a     district   court   may    grant   a

defendant’s motion for a new trial “if the interest of justice so


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requires.”    Fed. R. Crim. P. 33(a).             A district court “‘should

exercise its discretion to grant a new trial sparingly,’ and . . .

should do so ‘only when the evidence weighs heavily against the

verdict.’”    United States v. Perry, 335 F.3d 316, 320 (4th Cir.

2003) (quoting United States v. Wilson, 118 F.3d 228, 237 (4th Cir.

1997) (internal quotation marks omitted).                This court reviews the

denial of a Rule 33 motion for abuse of discretion.               United States

v. Adam, 70 F.3d 776, 779 (4th Cir. 1995).

            Cave contends that he has met the standard for a new

trial under the Larrison rule.           See Larrison v. United States, 24

F.2d 82, 87-88 (7th Cir. 1928), overruled by United States v.

Mitrione,    357   F.3d    712   (7th    Cir.    2004)    (adopting   reasonable

probability test).        According to that standard--which has been the

test employed in this Circuit--the district court may grant a new

trial following the recantation of a government witness’ testimony

if the court is “reasonably well satisfied” that:                      (1) “the

testimony given by a material witness is false,” (2) “without it

the jury might have reached a different conclusion,” and (3) “the

party seeking the new trial was taken by surprise when the false

testimony was given and was unable to meet it or did not know of

its falsity until after the trial.”             United States v. Wallace, 528

F.2d 863, 866 (4th Cir. 1976) (quoting Larrison, 24 F.2d at 87-88).

See also United States v. Lofton, 233 F.3d 313, 318 (4th Cir.

2000).


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            We   find   that   the   district    court   did   not   abuse   its

discretion in denying Cave’s motion for a new trial because Cave

cannot    satisfy   the   second     prong    under   Larrison.      Hairston’s

testimony was simply cumulative of the testimony given by inmate

Barksdale.    Even without Hairston’s testimony, the uncontroverted

evidence is that Trooper Brannock saw Cave drop the box of cocaine

base from the bathroom window, and Cave admitted his conduct to

Barksdale.

            In his pro se supplemental brief, Cave alleges that the

trial court erred by failing to inquire into his prior convictions

as required by 21 U.S.C. § 851 (2000).                Cave contends that the

district court incorrectly added one point to his criminal history

score by adding one point for his state conviction for conspiracy

to possess with intent to distribute marijuana in the fourth

degree.    Cave contends that this prior conviction does not qualify

as a “felony drug offense.”             Cave argues that he would have

corrected the court’s alleged error had the court asked him about

the prior conviction at the sentencing hearing.                   Finally, Cave

argues that his counsel was ineffective for failing to raise the

issue at trial.

            Because Cave raises the § 851 issue for the first time on

appeal, it is reviewed for plain error.          The procedure set forth in

§ 851(b) “provides the defendant with a full and fair opportunity

to establish that he is not the previously convicted individual or


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that the conviction is an inappropriate basis for enhancement.”

United States v. Ellis, 326 F.3d 593, 599 (4th Cir. 2003) (quoting

United States v. Campbell, 980 F.2d 245, 252 (4th Cir. 1992)).

Even if the district court does not act in strict compliance with

§ 851, on plain error review, Cave “must prove that the error

‘actually affected the outcome of the proceedings.’”               Ellis, 326

F.3d at 599 (quoting United States v. Hastings, 134 F.3d 235, 240

(4th Cir. 1998)).

                We find Cave fails to demonstrate any error committed by

the district court that affected the outcome of the sentencing

proceeding.          Prior to the sentencing, Cave received notice of the

precise conviction that would form the basis for his enhancement.

The court asked defense counsel whether he and Cave had read the

presentence report and whether there were any objections to it.

Counsel answered that they had discussed it and there were no

objections.          In addition, we have reviewed the district court’s

criminal history calculation and find the court did not err.                As a

result, Cave cannot demonstrate prejudice with respect to the § 851

claim      or   an    ineffective   assistance   of   counsel   claim.      See

Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

                For these reasons, we deny Cave’s motion to strike the

formal brief filed by his attorney, grant Cave’s motion to file a

pro   se    supplemental      brief,   and   affirm   Cave’s   conviction   and

sentence.        We dispense with oral argument because the facts and


                                       - 6 -
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                         AFFIRMED




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