                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4710



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JUAN CARLOS BARRAGAN, a/k/a Kora, a/k/a
Quarta,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:03-cr-00231-1)


Submitted:   February 28, 2007             Decided:   March 27, 2007


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kevin Zolot, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Juan Carlos Barragan appeals his convictions and sentence

for conspiracy to possess with intent to distribute over five

kilograms of cocaine and over one hundred kilograms of marijuana,

in violation of 21 U.S.C. §§ 841, 846 (2000) (Count 1), possession

with intent to distribute over fifty kilograms of marijuana, in

violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (2000) (Count 5),

and use and carrying of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1) (West

Supp. 2006) (Count 6).     Finding no error, we affirm.

           Barragan’s    first   contention   on   appeal   is   that   his

conviction on Count 6 should be reversed for insufficient evidence,

alleging that the Government failed to prove that the firearm found

on Barragan during his arrest was used in furtherance of a drug

trafficking crime.      Barragan asserts that the Government did not

demonstrate a nexus between his possession of the firearm and the

drug trafficking activity, and that there was no evidence proving

that the firearm was used in furtherance of such activity.

           This court reviews the denial of a motion for acquittal

de novo.   United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

2005), cert. denied, 126 S. Ct. 1925 (2006).        Where, as here, the

motion is based on a claim of insufficient evidence, the verdict of

a jury must be sustained if there is substantial evidence, taking

the view most favorable to the Government, to support it.         Id.; see


                                  - 2 -
Glasser v. United States, 315 U.S. 60, 80 (1942).               This court has

defined substantial evidence as 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.

Alerre, 430 F.3d at 693.        This court must consider circumstantial

as well as direct evidence, and allow the Government the benefit of

all reasonable inferences from the facts proven to those sought to

be established.       United States v. Tresvant, 677 F.2d 1018, 1021

(4th    Cir.     1982).    This    court    does     not   review   credibility

determinations on appeal.         See Glasser, 315 U.S. at 80.

            Section 924(c) requires proof that a defendant used or

carried a firearm during and in relation to a drug trafficking

crime, or that the defendant, in furtherance of any such crime,

possessed a firearm.       To sustain a conviction under § 924(c), the

Government must present evidence indicating that the possession of

the    firearm    “furthered,     advanced,     or   helped   forward   a    drug

trafficking crime.” United States v. Lomax, 293 F.3d 701, 705 (4th

Cir. 2002). To establish this relationship between the firearm and

the drug offense, the trier of fact may consider: “‘the type of

drug   activity     that   is   being    conducted,    accessibility    of    the

firearm, the type of weapon, whether the weapon is stolen, the

status of the possession (legitimate or illegal), whether the gun

is loaded, proximity to drugs or drug profits, and the time and




                                        - 3 -
circumstances under which the gun is found.’”           Id. (quoting United

States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)).

             Despite Barragan’s assertion that the link between his

gun   and   the   drugs   was   coincidental,   we    find   that       there   was

substantial evidence linking Barragan’s firearm to the underlying

drug transaction.         Before his arrest, officers found Barragan

standing five feet away from one hundred pounds of marijuana.

While securing Barragan, the arresting officer found a Beretta 9mm

handgun     “tucked   down   in   his   waistband,”    without      a    holster.

Additionally, witnesses testified that Barragan frequently carried

a 9mm handgun during drug transactions.1         While Barragan noted at

trial that he had a concealed handgun permit, that does not negate

the fact that Barragan was in possession of a firearm in close

proximity to a large amount of narcotics, the weapon was readily

accessible in the waistband of his pants, and testimony established

that Barragan almost always carried a 9mm handgun during drug



      1
      Barragan contends that testimony relating to his possession
of a firearm at any time other than the specific date identified in
the indictment cannot be used to support the conviction, citing
United States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999)
(holding that if a specific predicate offense is identified in the
indictment, a conviction cannot stand on proof of an alternative
predicate offense).    However, Barragan’s reliance on Randall is
misplaced, as the testimony did not relate to the predicate
offense, but rather was presented to establish that Barragan’s
firearm was regularly used in furtherance of his drug deals. See
United States v. Sullivan, 455 F.3d 248, 260 (4th Cir. 2006)
(finding that firearm was possessed in furtherance of drug crimes
based on testimony indicating that defendant frequently carried
handgun during drug transactions).

                                    - 4 -
transactions.    Given Barragan’s frequent possession of a handgun

during drug transactions and the obvious dangers involved in

dealing with large amounts of narcotics, the evidence demonstrated

a clear connection between his firearm and his involvement in drug

activity.   See Sullivan, 455 F.3d at 260 (jury was entitled to find

that handgun was used for personal protection based on dangerous

nature of drug dealing); Lomax, 293 F.3d at 706 (“Fact finders are

not required to blind themselves to the unfortunate reality that

drugs and guns all too often go hand in hand.”).      Therefore, we

hold that there was sufficient evidence to support Barragan’s

conviction under § 924(c).

            Barragan next asserts that the district court erred in

determining his base offense level, as he was held responsible for

62 kilograms of cocaine and 71 kilograms of marijuana, resulting in

a base offense level of 36.2     Barragan asserts that the jury’s

verdict supported a much lower offense level, involving five to

fifteen kilograms of cocaine, and that the significantly higher




     2
      Additionally, Barragan contends that the preponderance of
evidence standard should not have been applied in determining his
sentencing enhancements, as the facts relied on by the court were
not admitted by Barragan or found by a jury beyond a reasonable
doubt.    However, this court has determined that sentencing
decisions made based on the preponderance of the evidence comport
with the requirements of the Sixth Amendment. See United States v.
Morris, 429 F.3d 65, 71 (4th Cir. 2005), cert. denied, 127 S. Ct.
121 (2006).    Therefore, the district court applied the proper
evidentiary standard in determining Barragan’s sentence.

                               - 5 -
amount reached by the district court was based on unreliable

testimony.

           When reviewing the district court’s application of the

Sentencing Guidelines, this court reviews findings of fact for

clear error and questions of law de novo.          United States v. Green,

436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).

In this case, the jury found that the charged conspiracy involved

five kilograms or more of cocaine, and the PSR calculated that

Barragan was responsible for a total of 62 kilograms.               Barragan

argued at sentencing, as he does on appeal, that this calculation

was   supported    solely   by   the    unreliable     testimony     of     co-

conspirators.     The district court noted it would have been more

sympathetic to Barragan’s argument if the drug amounts were in fact

based only on the testimony of informants and co-conspirators, but

that “[t]his case is the result of [an] extensive, lengthy and very

professional    operative   investigation.     And     much   of   what     the

corroborating witnesses say is, in fact, corroborated by the

evidence.”

           The testimony presented at trial amply supported the

district   court’s   determination     regarding    the   total    amount   of

cocaine used to calculate the base offense level. Jose Orosco, who

transported drugs for Barragan, testified at length regarding the

nearly 80 kilograms of cocaine that he observed Barragan either buy

or sell.   David Martinez, who also worked for Barragan, testified


                                  - 6 -
that he had seen Barragan with over 100 kilograms of cocaine.        The

testimony provided by these witnesses supported the information

provided to the probation officer by a confidential source of

information   (“CSI”),   who   referred   to   three   separate   cocaine

transactions involving Barragan that totaled at least eighteen

kilograms.    Based on the information provided to the probation

officer by the CSI, as well as the 44 kilograms of cocaine

discussed during a telephone conversation between Juan Barragan and

Enrique Barragan, the district court adopted the PSR’s calculation

that Barragan was responsible for at least 62 kilograms of cocaine.

          As the district court noted, the Government not only

provided testimony from the co-conspirators regarding the drug

amounts, but the DEA was also able to gather additional evidence

through the use of recordings and wiretaps.       While Barragan makes

conclusory allegations in an effort to undercut the testimony

provided by the co-conspirators, he presents nothing substantive

that would call into question the credibility determinations made

by the district court.    See United States v. Jones, 356 F.3d 529,

537 (4th Cir. 2004) (quoting United States v. Moore, 242 F.3d 1080,

1081 (8th Cir. 2001)) (factual findings by trial court that are

based on credibility of witnesses are “virtually unreviewable” when

there are two permissible ways to view the evidence).        In light of

the testimony and evidence provided at trial, we hold that the




                                 - 7 -
district court’s determination as to the total amount of cocaine

attributable to Barragan was not erroneous.

           Barragan further contends that the district court erred

by increasing his offense level by four levels due to his role as

a   “leader”    in   the   conspiracy,   pursuant   to   U.S.   Sentencing

Guidelines Manual § 3B1.1(a).       At trial, Martinez testified that

Barragan owned the garage where most of the drug transactions were

carried out, was responsible for bringing additional people into

his illegal operation, and that he was the “chief” and “head” of

the organization. Martinez also listed a number of individuals who

worked for Barragan, including Barragan’s brother and his nephew,

who were described as “second” and “third” within the organization.

Martinez further testified that when Barragan would leave for

Mexico, his brother and nephew were left in charge of the drug

operation.     The testimony provided by Orosco and Martinez provided

the district court with adequate grounds to find that Barragan was

the leader of the organization, as Barragan directed the other

individuals and was identified as the head of operations.            While

the district court did not specify whether the subject criminal

activity “involved five or more participants” or was “otherwise

extensive,” as is required under § 3B1.1, the evidence clearly

supported that Barragan’s organization involved more than five

participants.     Therefore, we find that the district court did not




                                   - 8 -
err by increasing Barragan’s offense level by four levels due to

his organizational role within the conspiracy.

           Finally,   Barragan   contends   that    the    district   court

erroneously concluded that it lacked the authority to grant a

variance from the Sentencing Guidelines range.            In a post-Booker

sentencing, the court must calculate the advisory Guidelines range

and then consider whether that range serves the factors set forth

in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).         Green, 436 F.3d

at 456.   In selecting a sentence that serves the § 3553(a) factors,

“the district court should first look to whether a departure is

appropriate based on the Guidelines Manual or relevant case law.”

United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.

denied, 126 S. Ct. 2054 (2006).     If the resulting departure range

does not adequately address the court’s concerns, the district

court can impose a variance sentence.       Id.    If the district court

imposes a variance sentence, “[t]he district court must articulate

the reasons for the sentence imposed, particularly explaining any

departure or variance from the guideline range” in light of the

factors in § 3553(a).    Id.; Green, 436 F.3d at 456.

           While Barragan relies on selective remarks made by the

district court at sentencing, these statements do not sufficiently

support a claim that the district court believed that it lacked the

authority to grant a variance.     The record, read in its entirety,

confirms that the district court understood its authority to impose


                                 - 9 -
a variance sentence, but declined to do so.       The court heard from

both Barragan and the Government on this issue, noted the advisory

nature of the Sentencing Guidelines, and also recognized that the

Guidelines already consider the § 3553(a) factors.           See United

States v. Johnson, 445 F.3d 339, 342-43 (4th Cir. 2006).             The

district court concluded that the evidence presented by Barragan at

sentencing was not sufficient to diverge from the Guidelines range,

and that given the presumption of reasonableness given to the

Guidelines, the court was not “empowered” to grant a variance based

on the facts of the case.       See United States v. Hampton, 441 F.3d

284, 287 (4th Cir. 2006) (variance must be supported by the facts

of the particular case); Moreland, 437 F.3d at 434 (divergence from

Guidelines range must be based on plausible reasons for doing so).

Therefore, we find that the district court was aware of its

authority to grant a variance sentence and committed no error in

declining to depart from the Sentencing Guidelines range.

            Accordingly,   we    affirm    Barragan’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




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