                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4173


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

TRAVIS DELL JONES,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, Chief
District Judge. (1:08-cr-00040-JPJ-1)


Submitted:     February 2, 2010             Decided:   February 26, 2010


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellant. Julia C. Dudley, United States
Attorney, Zachary T. Lee, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Travis Dell Jones was convicted after a jury trial of

conspiracy to possess with intent to distribute and distribute

cocaine   base,    in   violation     of       21   U.S.C.      § 846      (2006).     The

district court sentenced Jones to 156 months of imprisonment and

Jones now appeals.        Finding no error, we affirm.

              Jones first argues that the district court erred in

dismissing the first indictment without prejudice, rather than

with     prejudice,       after   federal            authorities         violated      the

anti-shuttling      provision        of    the        Interstate         Agreement      on

Detainers (“IAD”), 18 U.S.C. app. 2 (2006).                           When a district

court has dismissed an indictment for violation of the IAD, an

appellate court reviews the district court‟s legal conclusions

de novo, factual findings for clear error, and the ultimate

decision for abuse of discretion.                   United States v. Kelley, 402

F.3d 39, 41 (1st Cir. 2005).

              The IAD “is a compact entered into by [forty-eight]

States,   the    United    States,    and       the    District       of    Columbia   to

establish procedures for resolution of one State‟s outstanding

charges against a prisoner of another State.”                     New York v. Hill,

528 U.S. 110, 111 (2000) (citation omitted); see 18 U.S.C. app.

2,   §   2.     Moreover,    because       the       IAD   is    “a     congressionally

sanctioned interstate compact within the Compact Clause of the

United States Constitution, art. I, § 10, cl. 3, the IAD is a

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federal law subject to federal construction.”           Hill, 528 U.S. at

111 (internal quotation marks and citations omitted).               Pursuant

to § 7, when the United States entered into the agreement, it

reserved the right to alter, amend, or repeal the act by which

the IAD was enacted as federal law.         18 U.S.C. app. 2, § 7.

           Under the anti-shuttling provision of the Interstate

Agreement on Detainers (“IAD”), a receiving state is not to

return a prisoner to the custody of the sending state until the

charges lodged by the receiving state have been fully resolved.

See 18 U.S.C. app. 2, § 2.            Except as described below, the

compact further provides that if the charges are not disposed of

before a prisoner is returned to the sending state, the court

must dismiss the indictment with prejudice.           Id.     However, after

entering into the IAD on behalf of the United States and the

District   of    Columbia,    Congress     amended   the      agreement,    as

authorized by § 7, by adding § 9, which allows a district court

to dismiss an indictment with or without prejudice when the

United States is the receiving state.             18 U.S.C. app. 2, § 9.

Here,   there   is   no   dispute   that   the   Government    violated    the

anti-shuttling provision of the IAD when it returned Jones to

state custody prior to his trial on this charge.

           Jones argues that §§ 7 and 9 of the federal version of

the IAD are unconstitutional because Congress has no authority

to amend or repeal an interstate compact after it has consented

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to the compact‟s creation.           We have previously held in Bush v.

Muncy, 659 F.2d 402, 411-12 & n.5 (4th Cir. 1981), however, that

while the United States is a party to the agreement, it is not a

“party” to the constitutional compact.                     Therefore, while the

states that are parties to the constitutional compact may not

fundamentally      alter     or    amend     the     compact        through       state

legislation by reason of the Supremacy Clause, there is no such

restriction on the United States.            See Bush, 659 F.3d at 411-12

and n.5 (as constitutional compact is federal law, states may

not amend compact because of Supremacy Clause); U.S. Const. art.

VI (“This Constitution, and the laws of the United States which

shall be made in pursuance thereof; . . . shall be the supreme

law of the land; and the judges in every state shall be bound

thereby, anything in the Constitution or laws of any State to

the contrary notwithstanding.”).             We conclude, therefore, that

the    district    court‟s   determination         that    §§ 7     and    9    of   the

federal version of the IAD are constitutional was not error.

            Jones next argues that the district court nonetheless

should have dismissed the first indictment with prejudice.                           We

have    reviewed    the    record,      however,     and    conclude       that      the

district   court    properly      and   thoroughly        weighed    the       relevant

considerations and did not abuse its discretion in dismissing

the first indictment without prejudice.



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             Jones also challenges the district court‟s denial of

his     motion    to     dismiss       the       second      indictment     for    lack       of

jurisdiction because Jones had filed a notice of appeal of the

dismissal of the first indictment.                     However, while the filing of

a notice of appeal “confers jurisdiction on the court of appeals

and divests the district court of control over those aspects of

the case involved in the appeal[,]” Griggs v. Provident Consumer

Disc.    Co.,    459     U.S.       56,    58    (1982)      (citation     omitted),         the

district     court     does     not       lose    jurisdiction      when    the     litigant

takes an appeal from an unappealable order.                        Id. (citing Ruby v.

Sec‟y of United States Navy, 365 F.2d 385, 389 (9th Cir. 1996)

(en    banc)).         The    district          court‟s      dismissal     of     the   first

indictment       without      prejudice          was   not    a   final    order,       nor    a

collateral       order       that     could      be    immediately        appealed      by     a

defendant, and this court ultimately dismissed Jones‟ appeal for

lack of jurisdiction.                Therefore, the filing of the notice of

appeal did not divest the district court of jurisdiction over

this case.

             Jones next challenges the district court‟s denial of

his motion to suppress statements he made to state and federal

authorities during a meeting set up by his counsel while he was

in    jail   awaiting        trial    on     state     charges.       “In       reviewing      a

district court‟s ruling on a motion to suppress, [this court]

review[s] the court‟s factual findings for clear error, and its

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legal conclusions de novo.”             United States v. Cain, 524 F.3d

477, 481 (4th Cir. 2008) (citation omitted).               When the district

court denies a defendant‟s suppression motion, we construe “the

evidence   in    the    light   most   favorable   to     the   [G]overnment.”

United States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005)

(citation omitted).

           Jones       argues   that   the   statements    were   inadmissible

because he was not informed of his rights pursuant to Miranda v.

Arizona, 384 U.S. 436 (1966), before being questioned by law

enforcement     officials.       Statements    obtained    from   a   defendant

during custodial interrogation are presumptively compelled in

violation of the Fifth Amendment, unless the government shows

that law enforcement officers adequately informed the defendant

of his Miranda rights and obtained a wavier of those rights.

United States v. Cardwell, 433 F.3d 378, 388-89 (4th Cir. 2005).

To determine whether a defendant was in custody for purposes of

Miranda where the defendant is already incarcerated, the court

must determine whether there is “an added imposition on his

freedom of movement.”           United States v. Conley, 779 F.2d 970,

973 (4th Cir. 1995) (citing Cervantes v. Walker, 589 F.2d 424,

428 (9th Cir. 1978)).            In doing so, the district court must

consider “whether the inmate was subjected to more than the

usual restraint on a prisoner‟s liberty to depart.”               Conley, 779

F.2d at 973.

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               In determining whether an inmate was in custody during

an     interrogation,         the    district        court      should        look    to     “the

language       used      to     summon        the     individual,             the      physical

surroundings of the interrogation, the extent to which he is

confronted      with     evidence        of    his    guilt,          and    the     additional

pressure exerted on him . . . .”                      Cervantes, 589 F.2d at 428.

Having thoroughly reviewed the record and the relevant legal

authorities, we conclude that the district court did not err in

finding that Jones was not in custody for purposes of Miranda

when he made the incriminating statements.

               Jones     also        argues         that        his     statements           were

inadmissible because they were involuntary.                           To be admissible, a

defendant‟s         statements      to   law       enforcement         must    be     voluntary

under the Fifth Amendment.                United States v. Braxton, 112 F.3d

777,     780    (4th     Cir.       1997).          The    test        to     determine       the

voluntariness of a confession “is whether the confession was

extracted by any sort of threats or violence, [or] obtained by

any direct or implied promises, however slight, [or] by the

exertion of any improper influence.”                         Id. (internal quotation

marks    and    citations        omitted).           Moreover,          “„coercive         police

activity       is    a   necessary       predicate         to    the        finding    that    a

confession is not „voluntary‟ within the meaning of the Due

Process Clause.”         Id. (citing Colorado v. Connelly, 479 U.S. 157

(1986)).       To determine whether police activity was coercive, the

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court must ask “whether the defendant‟s will has been overborne

or    his   capacity    for   self-determination           critically       impaired.”

Id.    (internal   quotation     marks       and       citation   omitted).         This

determination requires a consideration of “the totality of the

circumstances, including the characteristics of the defendant,

the    setting     of   the    interview,          and     the    details     of    the

interrogation.”         Id.   (internal      quotation       marks    and    citations

omitted).

             We review a district court‟s determination regarding

voluntariness de novo but accept the district court‟s findings

on    the   circumstances     surrounding          a    confession    absent       clear

error.      Id. at 781.        Here, we have thoroughly reviewed the

record and conclude that there is no evidence of coercive police

activity      demonstrating      that        Jones‟        will      was    overcome.

Critically, Jones and his counsel actually initiated the meeting

at which the statements were made, Jones‟ counsel was present,

the interview took place in the prison library, Jones was not in

restraints, and the questioning lasted no longer than thirty

minutes.       Accordingly,     we   find     that       Jones‟    statements       were

voluntary and admissible.

             Jones next argues that there was insufficient evidence

to demonstrate that he was a member of the conspiracy.                                We

review a district court‟s decision to deny a Fed. R. Crim. P. 29

motion for a judgment of acquittal de novo and the denial of a

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Fed.   R.    Crim.      P.   33     motion    for       a   new     trial     for    abuse    of

discretion.        United States v. Smith, 451 F.3d 209, 216 (4th Cir.

2006).      A defendant challenging the sufficiency of the evidence

faces a heavy burden.               United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997).               The verdict of a jury must be sustained

“if, viewing the evidence in the light most favorable to the

prosecution,         the      verdict         is     supported          by     „substantial

evidence.‟”          Smith,        451   F.3d      at       216    (citations       omitted).

Substantial evidence is “evidence that a reasonable finder of

fact   could       accept     as    adequate       and      sufficient        to    support    a

conclusion of a defendant‟s guilt beyond a reasonable doubt.”

Id.      (internal         quotation         marks          and     citation        omitted).

Furthermore, “[t]he jury, not the reviewing court, weighs the

credibility of the evidence and resolves any conflicts in the

evidence     presented.”             Beidler,       110      F.3d     at     1067   (internal

quotation         marks      and     citation        omitted).               “Reversal       for

insufficient evidence is reserved for the rare case where the

prosecution‟s failure is clear.”                    Id. (internal quotation marks

and citation omitted).

             In order to prove conspiracy to distribute and possess

with   intent      to     distribute     crack       cocaine,        the     Government      was

required to establish that: “(1) an agreement to [distribute

and] possess cocaine [base] with intent to distribute existed

between     two    or     more     persons,    (2)      the       defendant    knew    of    the

                                               9
conspiracy,      and       (3)    the    defendant          knowingly      and     voluntarily

became a part of the conspiracy.”                         United States v. Burgos, 94

F.3d 849, 857 (4th Cir. 1996) (en banc) (citations omitted).

The   Government           may    meet       its        burden    of    proof      “wholly     by

circumstantial evidence.”                    Id. at 858.           We have reviewed the

evidence in this case and conclude that the Government produced

sufficient evidence from which a reasonable jury could find that

Jones was a member of the conspiracy.

           Finally, Jones challenges the district court‟s denial

of his proposed jury instruction on a buyer-seller relationship.

“„The decision to give or not to give a jury instruction is

reviewed   for      an      abuse       of    discretion.‟”             United       States    v.

Hurwitz,   459    F.3d       463,       474     (4th      Cir.    2006)    (quoting     United

States v. Moye, 454 F.3d 390, 398 (4th Cir. 2006) (en banc)).

Furthermore,      “„[w]e         review        a    jury    instruction         to    determine

whether, taken as a whole, the instruction fairly states the

controlling law.‟”               Id. (quoting Moye, 454 F.3d at 398).                         If

this court determines that the district court erred in refusing

an    instruction,          such        error       “warrant[s]         reversal       of     the

conviction only if the error is prejudicial based on a review of

the   record   as      a    whole.”           Moye,       454    F.3d   at    399    (internal

quotation marks and citation omitted).

           Jones         requested           the    court       instruct     the     jury    that

evidence of a buyer-seller relationship alone is insufficient to

                                                   10
support a conspiracy conviction, even if the purchases were made

with the intent to resell the narcotics.                  Having reviewed the

relevant legal authorities, we conclude that the district court

did not err in refusing to give this instruction.                            Further,

based    on    the   record     as   a   whole,    even     if      we    assume    the

instruction      should    have      been     given,   Jones        has    failed   to

demonstrate he suffered prejudice as a result.

              Accordingly, we affirm the judgment of the district

court.     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 in the decisional

process.

                                                                             AFFIRMED




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