                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4121


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTAWIN BURGESS, a/k/a Hicky,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:07-cr-00791-TLW-1)


Submitted:   May 24, 2010                 Decided:   June 30, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ralph J. Wilson, Conway, South Carolina, for Appellant. Arthur
Bradley Parham, Assistant United States Attorney, Florence,
South Carolina, William Walter Wilkins, III, United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            After a jury trial, Antawin Burgess was convicted of

one count of conspiracy to possess with intent to distribute

fifty grams or more of crack cocaine and five kilograms or more

of    powder     cocaine,     in    violation         of    21     U.S.C.     § 841(a)(1),

(b)(1)(A) (2006), and one count of possession with intent to

distribute     a    quantity    of       cocaine,     in     violation      of   21    U.S.C.

§ 841(a)(1),        (b)(1)(C).           He     was   sentenced        to     324     months’

imprisonment.        His counsel filed a brief pursuant to Anders v.

California,        386   U.S.      738    (1967),        certifying         there     are    no

meritorious arguments for appeal but asking this court to review

the   sufficiency        of   the    evidence.             Burgess    filed      a    pro    se

supplemental brief challenging the use of a 1999 conviction to

increase the minimum statutory sentence.                     We affirm.

            “A      defendant       challenging            the   sufficiency          of     the

evidence . . . bears a heavy burden.”                      United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks

omitted).      “[A]n appellate court’s reversal of a conviction on

grounds of insufficient evidence should be ‘confined to cases

where the prosecution’s failure is clear.’”                           United States v.

Jones,   735     F.2d    785,   791      (4th     Cir.     1984)     (quoting        Burks    v.

United States, 437 U.S. 1, 17 (1978)).                      A verdict must be upheld

on appeal if there is substantial evidence in the record to

support it.        Glasser v. United States, 315 U.S. 60, 80 (1942).

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In     determining          whether       the        evidence         in     the      record       is

substantial, this court views the evidence in the light most

favorable      to     the    Government,         and       inquires        whether        there   is

evidence       that    a    reasonable        finder        of    fact       could    accept       as

adequate and sufficient to establish a defendant’s guilt beyond

a reasonable doubt.              United States v. Burgos, 94 F.3d 849, 862-

63 (4th Cir. 1996).

               The    elements     of     a     drug      conspiracy         are     as   follows:

(1) an agreement to violate the drug laws existed between two or

more    persons,      (2)    the   defendant           knew      of    the    conspiracy,         and

(3) the defendant knowingly and voluntarily became a part of the

conspiracy.           Burgos,      94    F.3d        at    857.        We     find    more       than

sufficient       evidence         to     support          the     conspiracy         conviction.

Likewise,       there       was        sufficient         evidence           to    support        the

possession conviction.                 In addition, there is nothing in the

record to suggest that the jury based its decision on anything

other than the trial evidence.

               We find no error with respect to the use of a 1999

felony conviction for possession of crack cocaine in order to

increase Burgess’ statutory minimum sentence.                                     The conviction

was    final    prior       to   Burgess        ending      his       participation         in    the

conspiracy.          See United States v. Howard, 115 F.3d 1151, 1158

(4th Cir. 1997); United States v. Lovell, 16 F.3d 494, 497 (2d

Cir. 1994).

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            We    have    also    reviewed       the    presentence       investigation

report     and    the     sentencing       transcript,        including          counsel’s

argument    for    a     lenient      sentence,         and   find       there    was     no

procedural or substantive error in the district court’s decision

to impose a sentence at the low end of the properly calculated

advisory Guidelines.

            In accordance with Anders we have reviewed the record

in this case and have found no meritorious issues for appeal.

We   therefore    affirm       Burgess’     conviction        and    sentence.          This

court requires that counsel inform Burgess, in writing, of his

right to petition the Supreme Court of the United States for

further review.          If Burgess requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

counsel    may    move    in   this      court    for    leave      to   withdraw       from

representation.         Counsel’s motion must state that a copy thereof

was served on Burgess.            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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