                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4139



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CHARLES ANDRE MATTISON, a/k/a Dre,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-02-1358)


Submitted:   November 30, 2006            Decided:   January 3, 2007


Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David B. Betts, Columbia, South Carolina, for Appellant. Regan
Alexandra Pendleton, Assistant United States Attorney, Greenville,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Charles     Andre   Mattison      appeals   his       convictions      and

420-month    sentence    for    conspiracy     to    possess      with    intent    to

distribute    crack   cocaine     and    distribution        of   crack    cocaine.

Counsel has filed an Anders v. California, 386 U.S. 738 (1967),

brief and Mattison has not filed a supplemental brief.                             The

Government elected not to file a reply brief.                Counsel raises the

issue of whether the district court erred in denying Mattison’s

Fed. R. Crim. P. 29 motion for judgment of acquittal, arguing that

there was insufficient evidence to support the convictions.                         He

also raises the issue of whether Mattison’s sentence violates the

Sixth Amendment or is in error because the Sentencing Guidelines

were applied in a mandatory fashion.            We affirm.

            This court reviews the denial of a Rule 29 motion de

novo.   United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).

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).    This court “ha[s] 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 (quoting

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)).                        The


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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).                    We “may

not weigh the evidence or review the credibility of the witnesses.”

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).                       We

have   reviewed    the   record    and   find    that    there    was    sufficient

evidence to support the convictions. We therefore find no error in

the district court’s denial of Mattison’s Rule 29 motion.

              Mattison’s Anders brief also raises the issues of whether

his sentence violates the Sixth Amendment because he received an

increased adjusted offense level based on drug quantity and leader

or   organizer    status   and    whether      the    district   court    erred   in

applying the Sentencing Guidelines as mandatory.                 Because Mattison

preserved this issue by objecting to the presentence report on

Blakely v. Washington, 542 U.S. 246 (2004), grounds, this court

reviews for harmless error.           United States v. Rodriguez, 433 F.3d

411, 415 (4th Cir. 2006).         Under the harmless error standard, this

court “must reverse unless [it] find[s] this constitutional error

harmless beyond a reasonable doubt, with the Government bearing the

burden of proving harmlessness.”               United States v. Mackins, 315

F.3d 399, 405 (4th Cir. 2003) (citations omitted); see United

States   v.    White,    405   F.3d    208,     223    (4th   Cir.)     (discussing

difference in burden of proving that error affected substantial


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rights under harmless error standard in Fed. R. App. P. 52(a), and

plain error standard in Fed. R. App. P. 52(b)), cert. denied, 126

S. Ct. 668 (2005).

              Here, while the district court’s application of the

Sentencing Guidelines as a mandatory determinant in sentencing was

error, the district court clearly announced that it would impose a

higher sentence if the guidelines did not apply.                   See White, 405

F.3d at 216-17, 224. Given the increased alternative discretionary

sentence, the Government can show that the error in treating the

guidelines as mandatory did not affect Mattison’s substantial

rights.      See id. at 223 (noting that substantial rights inquiry is

the same under plain or harmless error and that only difference is

who bears burden of proof); see also United States v. Revels, 455

F.3d 448, 452 (4th Cir. 2006) (holding a Sixth Amendment error

harmless      because     the   district    court      announced    an    identical

alternate sentence after considering the guidelines as advisory

only   and    thus   the   error   did     not   affect   the   outcome     of   the

proceeding).         In    addition,     even    had    Mattison’s       sentencing

objections been granted, they would have no effect on his sentence

because of his career offender status.              Thus, any United States v.

Booker, 543 U.S. 220 (2005), error by the district court in

imposing Mattison’s sentence was harmless.                 We therefore affirm

Mattison’s sentence.




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          We deny Mattison’s motion to remand for resentencing and

grant the Government’s motion to dismiss the motion to remand.   In

accordance with Anders, we have reviewed the record in this case

and have found no meritorious issues for appeal.      We therefore

affirm Mattison’s convictions and sentence.    This court requires

that counsel inform Mattison, in writing, of the right to petition

the Supreme Court of the United States for further review.       If

Mattison 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 Mattison.    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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