                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4301


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAVIS SHERARD MCKENZIE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:07-cr-00155-JFA-3)


Submitted:   August 26, 2010             Decided:   September 23, 2010


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John M. Ervin, III, Darlington, South Carolina, for Appellant.
Stacey   Denise  Haynes,   Assistant   United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A federal grand jury charged Javis Sherard McKenzie in

a third superseding indictment with conspiracy to possess with

intent to distribute and to distribute fifty grams or more of

cocaine base (“crack”) and five kilograms or more of cocaine, in

violation    of    21 U.S.C.   §    846 (2006)         (Count    One), 1 use    of   a

communication       facility       (a     telephone)       to     facilitate     the

commission of a felony under the Controlled Substances Act, in

violation of 21 U.S.C. § 843(b) (2006) and 18 U.S.C. § 2 (2006)

(Counts Seven, Eight, and Nine), and possession of firearms and

ammunition    by    a   convicted       felon,   in    violation    of   18    U.S.C.

§§ 922(g)(1) and 924(a)(2) & (e) (2006) (Count Seventy-Nine).

The jury convicted McKenzie on all counts.                      The district court

sentenced McKenzie to concurrent terms of imprisonment of 480

months on Count One, forty-eight months on each of Counts Seven

through Nine, and 120 months on Count Seventy-Nine, a downward

variance from the federal guidelines range of life imprisonment.

            McKenzie timely appealed.                 Counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), finding

no meritorious grounds for appeal but questioning whether the

district court erred by denying McKenzie’s Fed. R. Crim. P. 29


     1
       The conspiracy charge originally also included marijuana,
but this portion of the indictment was dismissed.



                                          2
motion for judgment of acquittal on Counts One and Seven through

Nine.       McKenzie filed a pro se supplemental brief. 2                      We affirm.

               McKenzie’s attorney challenges the denial of the Rule

29    motion,          but    ultimately       concludes    that        the   evidence     was

sufficient         to        support    McKenzie’s      convictions.            This     court

reviews the district court’s decision to deny a Rule 29 motion

de novo.          United States v. Reid, 523 F.3d 310, 317 (4th Cir.),

cert. denied, 129 S. Ct. 663 (2008).                     Where, as here, the motion

was based on a claim of insufficient evidence, “[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); Reid,

523    F.3d       at    317.      “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.”                  Reid, 523 F.3d at 317 (internal quotation

marks       and    citation        omitted).         This       court    “can    reverse      a

conviction on insufficiency grounds only when the prosecution’s

failure is clear.”                United States v. Moye, 454 F.3d 390, 394




       2
       In his pro se brief, McKenzie challenges the admission of
testimony concerning aspects of gang life and the lack of a
curative jury instruction addressing sequestration of witnesses.
We conclude that his claims are without merit.



                                                 3
(4th Cir. 2006) (en banc) (internal quotation marks and citation

omitted).

            Our review of the record reveals that the evidence

supported the jury’s verdict.               Regarding the conspiracy count,

testimony disclosed that McKenzie worked with several others to

distribute large quantities of cocaine and crack.                    See Reid, 523

F.3d   at    317     (stating       that,      to   prove      § 846       violation,

“[G]overnment      was   required    to     establish    (1)    an   agreement      to

possess with intent to distribute cocaine base existed between

two or more persons; (2) [defendant] knew of the conspiracy; and

(3) [defendant] knowingly and voluntarily became part of the

conspiracy.”).      Turning to Counts Seven through Nine, testimony

and McKenzie’s recorded telephone conversations established that

McKenzie    knowingly    used   a    telephone      on   the   relevant      days   to

facilitate the conspiracy.          See United States v. Henao-Melo, 591

F.3d 798, 802 n.5 (5th Cir. 2009) (“§ 843(b) requires proof that

a   defendant      (1)    knowingly       or    intentionally        (2)     used    a

communication facility (3) to facilitate the commission of a

drug offense.”), cert. denied, 130 S. Ct. 2392 (2010).

            In accordance with Anders, we have reviewed the record

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

We therefore affirm McKenzie’s convictions and sentence.                        This

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

right to petition the Supreme Court of the United States for

                                          4
further review.      If McKenzie requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

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

was served on McKenzie.       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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