                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5125



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


FREDERICK I. HOWARD,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CR-04-9)


Submitted:   May 31, 2005             Decided:    September 15, 2005


Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Heather A. Wood, FRANKOVITCH, ANETAKIS, COLANTONIO & SIMON,
Weirton, West Virginia, for Appellant. Thomas E. Johnston, United
States Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            On September 13, 2004, a jury convicted Frederick Howard

of conspiracy to distribute less than five kilograms but more than

five hundred grams of cocaine in violation of 21 U.S.C. §§ 846 and

841(b)(1)(B) (2000).        The district court sentenced Howard to 121

months’    imprisonment.          Howard    challenges      his   conviction   and

subsequent sentence.        We affirm.

            Howard   came    to    the     attention   of    police   after    they

initiated an investigation into the activities of co-defendant Paul

Norman.    Norman distributed cocaine out of two bars in which he had

a business interest. Co-conspirators Jason Thorn, Corey Doran, and

Thomas Leach handled cocaine sales.               Norman’s chief source of

supply was Don McFarland.

            Thorn started buying cocaine from Howard in late 2003.

Thorn and Norman both testified that Thorn told Norman he could get

better quality cocaine from Howard.            Norman tried Howard’s cocaine

and continued to purchase it until they were arrested in April

2004.     Norman estimated he received seventy to eighty ounces of

cocaine from Howard.        This ongoing arrangement was confirmed by

police wiretaps.

            During that time, on November 7, 2003, Howard was a

passenger in a vehicle that was stopped by police for having a

broken license plate light.         During the stop, Howard tried to exit

the vehicle twice.     The driver was unable to provide a license,


                                      - 2 -
proof of insurance or registration.             The police learned that the

driver’s license had been suspended.            The police then intended to

arrest    the   driver   and   requested      all    the    passengers    exit   the

vehicle.     When Howard exited the vehicle, officers saw a plastic

baggie containing white residue hanging from Howard’s pocket.

Howard underwent a “pat down” search that revealed a wad of money

large enough to conceal a weapon.             The wad of money concealed a

second baggie of white powder, which later analysis confirmed to be

cocaine.

            On March 20, 2004, Howard called Holly Ruble, who then

called Thorn, in order to warn Norman that Howard had spotted a van

following Norman. Howard then called Norman directly. Police were

in fact following Norman.        Norman had arranged to purchase cocaine

and eventually completed the transaction.

            Other witnesses testified they purchased cocaine from

Howard.    Robert Becker testified he purchased $600-$800 worth of

cocaine per month for a year to a year and a half.                   Also, Leach

testified that through Thorn, he purchased five ounces of cocaine

on four or five occasions after an initial purchase of three

ounces.    Leach’s testimony was corroborated by Thorn.

            Howard challenges his conviction and sentence on several

grounds.     First, he contends that the district court abused its

discretion      by   denying   his   motion    for    a    continuance.     Howard

submitted the motion the day after his attorney received a thousand


                                      - 3 -
pages of discovery on August 5, 2004.1        Howard’s attorney asserted

in the motion that she did not have enough time to review the

August 5 documents and surveillance video before the September 7,

2004 trial date.2

           We review the denial of a motion for a continuance to

discover whether the district court abused its broad discretion and

prejudiced the movant.       United States v. Bakker, 925 F.2d 728, 735

(4th Cir. 1991). A district court abuses its discretion in denying

a continuance only if the denial was “an unreasoning and arbitrary

‘insistence upon expeditiousness in the face of a justifiable

request for delay.’”       Morris v. Slappy, 461 U.S. 1, 11-12 (1983)

(quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).                The test

for   deciding   whether    the   court   abused   its   discretion    is   not

mechanical; it depends on the reasons presented to the court at the

time the request is made.      United States v. LaRouche, 896 F.2d 815,

823 (4th Cir. 1990).       We conclude the district court did not abuse

its discretion in denying the motion for a continuance because

Howard’s counsel had ample time to prepare for trial, and Howard

has not demonstrated prejudice.




      1
      The Government asserted at trial and in its brief that Howard
received 627 pages on August 5, 2004.
      2
      At trial, Howard primarily argued that the case should be
continued until the Supreme Court issued an opinion in United
States v. Booker, 125 S. Ct. 738 (2005). Howard has abandoned that
argument on appeal.

                                    - 4 -
               Second, Howard asserts that the cocaine found in his

pocket by police during the November 7, 2003 traffic stop was the

fruit of an improper search and seizure.                   This court reviews a

district court’s factual findings on a suppression motion for clear

error    and    its   legal   conclusions     de   novo.      United   States   v.

Grossman, 400 F.3d 212, 216 (4th Cir. 2005).                 When a suppression

motion has been denied, this court reviews the evidence in the

light most favorable to the Government.             United States v. Perkins,

363 F.3d 317, 320 (4th Cir. 2004), cert. denied, 125 S. Ct. 867

(2005).

               Probable cause that a routine automobile violation has

occurred justifies a routine traffic stop. Whren v. United States,

517 U.S. 806 (1996).          An officer making a lawful traffic stop may

require passengers to step out of the vehicle. Maryland v. Wilson,

519 U.S. 408, 415 (1997).         Once they have done so, the police may

conduct a limited, protective search for weapons provided they have

an articulable suspicion to believe the detained individual is

armed.    Terry v. Ohio, 392 U.S. 1, 30 (1968).

               Here, the uncontradicted evidence shows the police had

probable cause to stop the automobile because it had a defective

license plate light and, therefore, it was permissible for the

police to order Howard out of the vehicle.                   Given Howard’s two

earlier attempts to exit the vehicle and the baggie containing drug

residue protruding from his pocket in plain view, the police had


                                      - 5 -
the articulable suspicion necessary to conduct the pat down search.

See United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998)

(“[W]e hold that in connection with a lawful traffic stop of an

automobile, when the officer has a reasonable suspicion that

illegal drugs are in the vehicle, the officer may, in the absence

of factors allaying his safety concerns, order the occupants out of

the vehicle and pat them down briefly for weapons to ensure the

officer’s safety and the safety of others.” Therefore, we conclude

that the district did not err in denying Howard’s motion to

suppress.

            Third, Howard also argues that the evidence discovered

during the November 7, 2003 traffic stop was improperly admitted

under Fed. R. Evid. 404(b).    However, evidence of other crimes or

uncharged conduct is not excluded by Fed. R. Evid. 404(b) if the

conduct “arose out of the same . . . series of transactions as the

charged offense, . . . or if it is necessary to complete the story

of the crime [on trial].”    United States v. Kennedy, 32 F.3d 876,

885 (4th Cir. 1994) (quoting United States v. Towne, 870 F.2d 880,

886 (4th Cir. 1989)).    We conclude possession of cocaine is direct

evidence of Howard’s participation in a conspiracy to distribute

cocaine, and the district court did not err by admitting the

evidence.

            Fourth, Howard asserts that the evidence was insufficient

to convict him of conspiracy to distribute cocaine despite the


                                - 6 -
testimony of multiple co-defendants and the recordings of Howard’s

telephone conversations with them.     When a motion for judgment of

acquittal is based on insufficiency of the evidence, the verdict

must be sustained if there is substantial evidence, taking the view

most favorable to the Government, to support it.     See Glasser v.

United States, 315 U.S. 60, 80 (1942).      Substantial evidence is

defined 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) (en banc)).   This court

does not review the credibility of witnesses, and we must assume

that the jury resolved all evidentiary contradictions in the

Government’s favor.   United States v. Wilson, 115 F.3d 1185, 1190

(4th Cir. 1997).   Thus 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).          We conclude from the

materials before us on appeal that the evidence was sufficient to

support the jury conviction.

          Fifth, Howard argues he is entitled to resentencing under

United States v. Booker, 125 S. Ct. 738 (2005).      In Booker, the

Supreme Court held that Blakely v. Washington, 124 S. Ct. 2531

(2004), applies to the federal sentencing guidelines and that the

mandatory guidelines scheme that provided for sentence enhancements


                               - 7 -
based on facts found by the court by a preponderance of the

evidence violated the Sixth Amendment.         125 S. Ct. at 746-48, 755-

56 (Stevens, J., opinion of the Court).              The Court remedied the

constitutional violation by severing and excising two statutory

provisions, thus making the guidelines advisory.               Id. at 756-57

(Breyer, J., opinion of the Court). Because Howard objected in the

district court pursuant to Blakely v. Washington, 124 S. Ct. 2531

(2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), to the

judge’s cocaine quantity calculations, we review Howard’s Booker

claim for harmless error. Under this standard, we may disregard an

error made at sentencing if we are certain that any such error “did

not affect the district court’s selection of the sentence imposed.”

Williams v. United States, 503 U.S. 193, 203 (1992).

           The   district   court    found    the     quantity    of   cocaine

attributable to Howard by a preponderance of the evidence and

imposed a sentence under the mandatory guidelines regime that

exceeded the sentence Howard would have received without the

judicial factfinding, in violation of Booker.3           However, following

our direction in United States v. Hammoud, 381 F.3d 316, 353 (4th

Cir. 2004), the district court announced “a sentence pursuant to 18

U.S.C.A.   §   3553(a)   (West   2000   &    Supp.    2004),     treating   the



     3
      Just as we noted in United States v. Hughes, 401 F.3d 540
(4th Cir. 2005), "[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time" of
Howard's sentencing. 401 F.3d at 545 n.4.

                                    - 8 -
guidelines as advisory only.”    The alternative sentence announced

by the district court pursuant to Hammoud was identical to the

sentence imposed.     Therefore, the Booker error was harmless.

            Howard also argues that in light of Booker, his acquitted

conduct, distribution of ten ounces of cocaine on March 8, 2004,

cannot be used in sentencing.   However, even if the ten ounces were

not attributed to Howard, his offense level would not change

because his relevant conduct would still exceed 3.5 kilograms. See

USSG § 2D1.1.    Therefore, any possible error in this respect was

harmless.

            Lastly, Howard argues that even if he is not entitled to

relief under Booker, he is entitled to resentencing because the

evidence does not support the district court’s determination of

drug quantity and his role in the offense.    We review the district

court’s factual findings regarding drug quantity for clear error.

United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).   Under

the guidelines, drug quantities not specified in the counts of

conviction are considered relevant conduct when they are part of

the same course of conduct or common scheme or plan.            U.S.

Sentencing Guidelines § 1B1.3(a)(2).    “Same course of conduct” and

“common scheme or plan” are defined in Application Note 9 to

§ 1B1.3.    Under Application Note 9(B), an offense may be part of

the same course of conduct as the offense of conviction if it is

part of “an ongoing series of offenses.”    Factors to be considered


                                - 9 -
in making this determination are “the degree of similarity of the

offenses and the time interval between the offenses.”               Id.    After

reviewing the record, we conclude the district court did not

clearly err in calculating the quantity of cocaine attributable to

Howard.

           We also review “a district court determination regarding

the defendant's role in the offense” for clear error.                     United

States v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991). Howard

argues that he should have received a sentence reduction for being

a "minor" or "minimal" participant, as defined by USSG § 3B1.2.

Again after review of the records, we conclude that the district

court did not clearly err in its assessment of Howard’s role in

distributing a large amount of cocaine to various people for

further distribution.

           Accordingly,       we   deny   Howard’s   motions       to   file   a

supplemental brief, substitute counsel, and inspect the grand jury

hearing transcript.      We affirm Howard’s 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




                                    - 10 -
