                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4134


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

GEORGE EDWARD MITCHUM,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:08-cr-01174-TLW-1)


Submitted:   February 25, 2011            Decided:   March 21, 2011


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, A. W. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, Greg D. Andres, Acting
Deputy Assistant Attorney General, Lanny A. Breuer, Assistant
Attorney General, Washington, D.C., Thomas E. Booth, DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             George Edward Mitchum was convicted of: conspiracy to

traffic in cocaine, cocaine base, and marijuana; two counts of

possession       of    cocaine      with      intent         to    distribute;          using    and

carrying     a    firearm        during       a       drug        trafficking        crime;      and

possession of a firearm by a convicted felon.                                He was sentenced

to 420 months in prison.                 Mitchum now appeals.                     In his formal

brief, he contends that certain Fed. R. Evid. 404(b) evidence

was     improperly       admitted        at   trial.               He   also      raises      three

sentencing       errors       under   Anders          v.     California,          386    U.S.    738

(1967), but states that none has merit.                            Mitchum has filed a pro

se brief raising three additional claims.



                                                  I

             Mitchum          contends     that        the    district         court       admitted

certain    evidence       in     violation        of       Fed.    R.   Evid.       404(b).       We

review    decisions       to     admit     evidence          for     abuse     of      discretion.

United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005).                                        An

abuse of discretion “occurs only when it can be said that the

trial    court        acted    arbitrarily            or    irrationally          in    admitting

evidence.”       United States v. Williams, 445 F.3d 724, 732 (4th

Cir. 2006) (internal quotation marks omitted).

             “Evidence         of   other     crimes,         wrongs,        or     acts    is   not

admissible to prove the character of a person in order to show

                                                  2
action in conformity therewith.”                   Fed. R. Evid. 404(b).              Such

evidence “may, however, be admissible for other purposes, such

as   proof     of   motive,     opportunity,        intent,      preparation,        plan,

knowledge, identity, or absence of mistake or accident.”                               Id.

Further, “[t]o be admissible under Rule 404(b), evidence must be

(1) relevant to an issue other than character; (2) necessary;

and (3) reliable.”         United States v. Siegel, 536 F.3d 306, 317

(4th    Cir.    2008)    (internal     quotation         marks    omitted).          “Rule

404(b) is . . . an inclusive rule, admitting all evidence of

other   crimes      or   acts   except      that    which      tends   to    prove    only

criminal disposition.”            United States v. Young, 248 F.3d 260,

271-72 (4th Cir. 2001) (internal quotation marks omitted).                             “As

a rule of inclusion, the rule’s list is not exhausting.”                         United

States v. Queen¸ 132 F.3d 991, 994-95 (4th Cir. 1997).

               “Evidence sought to be admitted under Rule 404(b) must

also satisfy [Fed. R. Evid.] 403 . . . ,”                        Siegel, 536 F.3d at

319,    such     that    its    probative        value    is     not   “substantially

outweighed” by its prejudicial quality.                   Queen, 132 F.3d at 995.

Under Rule 403, “damage to a defendant’s case is not a basis for

excluding probative evidence” because “[e]vidence that is highly

probative       invariably      will   be       prejudicial       to   the    defense.”

United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).

“Rule 403 requires exclusion of evidence only in those instances

where the trial judge believes that there is a genuine risk that

                                            3
the emotions of the jury will be excited to irrational behavior,

and that this risk is disproportionate to the probative value of

the offered evidence.”             United States v. Mohr, 318 F.3d 613, 618

(4th Cir. 2003) (internal quotation marks omitted).

            Mitchum contends that the district court admitted the

following evidence in violation of Rule 404(b): (1) evidence

that he shot into the home of a deputy sheriff who previously

served him with an arrest warrant; and (2) evidence that he

abused     his    girlfriend.             We        hold    that,     under      the     above

authorities, the evidence was admissible under Rule 404(b) to

show Mitchum’s consciousness of guilt: i.e., to show that he

believed his case was weak and that he needed to threaten or

intimidate potential witnesses in order to prevail.                              See United

States v. Young, 248 F.3d 260, 272 (4th Cir. 2001).                                 Further,

the   evidence     was       not   unduly   prejudicial          under    Rule      403:   its

presentation occupied only a brief part of the four-day trial;

other    evidence      against        Mitchum       overwhelmingly       established       his

guilt;    and    the    court      instructed         the   jury    as   to   the      limited

purpose of the evidence.



                                               II

            Mitchum          raises    three        sentencing      issues    pursuant      to

Anders v. California, but states that none has merit.                               He first

contends    that       his    offense     level       was   erroneously       enhanced      by

                                                4
three   levels    pursuant     to    U.S.    Sentencing   Guidelines       Manual

§ 3C1.1 (2008) for obstruction of justice.                The enhancement is

authorized for, among other things, “threatening, intimidating,

or otherwise unlawfully influencing a . . . witness . . . ,

directly or indirectly, or attempting to do so.”                USSG § 3C1.1,

comment.      (n.4(a)).        In    light   of   testimony     that   Mitchum

threatened Joe Lewis Burgess and Jermaine Greene when he learned

they would testify against him, the enhancement was proper.

             Further, because the evidence established that Mitchum

fired into the deputy sheriff’s residence, the enhancement under

USSG § 3A1.2(a) (“Official Victim”) was appropriate.                   Finally,

while   the     district     court    acknowledged      that   it    had    some

discretion to vary from the powder-to-crack cocaine ratio in the

sentencing guidelines, see Spears v. United States, 129 S. Ct.

840, 843-44 (2009), the court declined to adopt the 1:1 ratio

proposed by Mitchum.       The court’s decision to abide by the ratio

incorporated into the Guidelines was not an abuse of discretion.



                                       III

             In his pro se brief, Mitchum contends that there was

insufficient evidence to convict him on the conspiracy charge.

A   jury’s   verdict   “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).

                                        5
“Substantial        evidence    is   that       evidence     which      a    ‘reasonable

finder   of    fact    could    accept      as    adequate      and     sufficient       to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.’”      United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.

2005) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996) (en banc)).          We review both direct and circumstantial

evidence      and    permit    the   “[G]overnment           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 do not review the credibility of witnesses,

and we assume the factfinder resolved all contradictions in the

testimony in favor of the Government.                   United States v. Sun, 278

F.3d 302, 313 (4th Cir. 2002).

              To convict Mitchum of conspiracy to distribute cocaine

and marijuana under 21 U.S.C. § 846 (2006), the Government had

to establish beyond a reasonable doubt that:                       (1) two or more

persons agreed to distribute the drugs; (2) Mitchum knew of the

conspiracy; and (3) he “knowingly and voluntarily became a part

of” the conspiracy.            See United States v. Yearwood, 518 F.3d

220, 227 (4th Cir. 2008).              We have never held that a criminal

enterprise must have a rigid structure or be the only criminal

enterprise     its    members    are    a       part    of   before     conspiratorial

criminal   liability      can    attach.          Cf.   Burgos,    94       F.3d   at   858

(“while many conspiracies are executed with precision, the fact

                                            6
that a conspiracy is loosely-knit, haphazard, or ill-conceived

does not render it any less a conspiracy—or any less unlawful”).

            Testimony          at        trial        overwhelmingly         established

Mitchum’s violation of 21 U.S.C. § 846 (2006).                        Mitchum obtained

significant      quantities         of    drugs      from    a   variety    of     sources,

including     Jody      Pearson,         Frederick         Burgess,     Matthew        Brown,

Charlie Redden, Jr., and Darrel Torel Mouzon.                              He then sold

drugs he had purchased to many customers, including Clarissa

Rogers,    Roderick     Ford,       and    Tony      Brown.       Shantel    Cunningham,

Mitchum’s     girlfriend        at       the       time,    testified      that       Mitchum

typically sold crack to twenty persons a day.                         The fact that he

had multiple suppliers who were not connected with one another

in a tightly knit network is irrelevant because “[e]vidence of a

buy-sell transaction, when coupled with a substantial quantity

of drugs, would support a reasonable inference that the parties

were coconspirators.”          United States v. Mills, 995 F.2d 480, 485

n.1 (4th Cir. 1993).           Here, there was ample evidence of numerous

buy-sell    transactions       involving            significant    amounts       of    drugs.

Mitchum accordingly was properly found guilty of conspiracy.



                                               IV

            In    his    pro    se        brief,      Mitchum     raises     two       Fourth

Amendment issues.        He complains that there was no probable cause

to support a search warrant for his home and that a traffic stop

                                               7
was unconstitutional.              No motion to suppress the evidence seized

pursuant to the search warrant or during the traffic stop was

filed    prior    to     trial.       Accordingly,           under     Fed.    R.    Crim.    P.

12(e),    Mitchum      has     waived    his         right   to     raise   this     issue    on

appeal.     See United States v. Whorley, 550 F.3d 326, 337 (4th

Cir. 2008); United States v. Ricco, 52 F.3d 58, 62 (4th Cir.

1995).



                                                 V

            We find no merit in the issues raised in the formal

and pro se briefs.             Further, in accordance with Anders, we have

reviewed the entire record for meritorious issues and have found

none.     We therefore affirm.               This court requires that counsel

inform his client, in writing, of his right to petition the

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

client 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    was    served     on    the

client.     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

                                                 8
