                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-4508



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

           versus


MARCUS STEVE BASKERVILLE, a/k/a Fat Bastard,

                                                 Defendant - Appellant.

---------------------------------------

JAMES BENTON, Juvenile Clerk,

                                                                 Movant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(CR-02-410-CCB)


Argued:   September 26, 2007                 Decided:   November 7, 2007


Before WILKINSON, Circuit Judge, HAMILTON, Senior Circuit Judge,
and T. S. ELLIS, III, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Harvey Greenberg, Towson, Maryland, for Appellant.
Stephanie Agli Gallagher, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Debra L.
Dwyer, Assistant United States Attorney, Andrea L. Smith, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     A jury convicted Marcus Baskerville of conspiracy to possess

with the intent to distribute and to distribute in excess of fifty

grams of cocaine base (crack), 21 U.S.C. § 846.              Baskerville

appeals his conviction and sentence, challenging the exclusion of

certain evidence, the sufficiency of the evidence to support his

conviction, and the sentence imposed by the district court.          We

affirm.

     First, Baskerville asserts that, under Rule 804(b)(3) of the

Federal Rules of Evidence, the district court should have allowed

him to call Royal Diamond Downs as a witness at trial.        According

to Baskerville, Downs would have testified that Baskerville’s

coconspirator, Keon Moses, stated to Downs that Aaron Butler, not

Baskerville, participated in the September 23, 2001 attack on three

rival drug dealers, which attack left two of the dealers dead and

one seriously injured.       In resolving Baskerville’s claim, the

district court assumed that Moses was unavailable and that his

statement to Downs exposed Moses to criminal liability, ultimately

rejecting the claim on the basis that corroborating circumstances

did not clearly indicate the trustworthiness of Moses’s statement.

See Fed. R. Evid. 804(b)(3) (providing that, if the declarant is

unavailable as a witness, “[a] statement tending to expose the

declarant to criminal liability and offered to exculpate the

accused   is   not   admissible   unless   corroborating   circumstances


                                  - 3 -
clearly indicate the trustworthiness of the statement”).         Although

we have serious doubt that Moses’s statement was against his penal

interest, our careful consideration of the court’s ruling leads us

to conclude that the court did not abuse its discretion in holding

that    the   proffered   testimony   lacked    sufficient    indices   of

reliability to be admissible under Rule 804(b)(3).             See United

States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995) (stating

standard of review for admission of Rule 804(b)(3) evidence); see

also United States v. Lowe, 65 F.3d 1137, 1145-46 (4th Cir. 1995)

(discussing corroborating circumstances).

       Next, Baskerville asserts that the evidence before the jury

was insufficient to convict him of participating in a conspiracy to

possess with the intent to distribute and to distribute crack.           A

jury’s 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).       “[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) (citation and internal

quotation marks omitted).     In determining whether the evidence in

the record is substantial, we view the evidence in the light most

favorable to the government and inquire whether there 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


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reasonable doubt.     United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996) (en banc).     A defendant challenging the sufficiency of

the evidence faces a heavy burden.         United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).        In evaluating the sufficiency of

the evidence, we do not review the credibility of the witnesses and

assume that the jury resolved all contradictions in the testimony

in favor of the government.       United States v. Romer, 148 F.3d 359,

364 (4th Cir. 1998).      We have carefully reviewed the record and

conclude that the evidence in the record is sufficient to support

the jury’s verdict.     See Burgos, 94 F.3d at 857 (“To prove [a drug

conspiracy], the Government must establish that (1) an agreement to

possess [illicit drugs] with intent to distribute existed between

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

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

conspiracy.”).

     Finally, Baskerville challenges his sentence.             Although his

sentencing argument is a bit confusing, the gist of the argument is

that his sentence runs afoul of our decision in United States v.

Collins, 415 F.3d 304 (4th Cir. 2005), where we held that a

defendant   found   guilty   of   a   conspiracy    to   violate   21    U.S.C.

§ 841(a) should be sentenced under 21 U.S.C. § 841(b) only by

considering the amount of drugs reasonably foreseeable to the

individual defendant (as opposed to the amount distributed by the

entire   conspiracy).     Collins,     415   F.3d   at   312-14.        Because


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Baskerville did not raise the Collins issue in the district court,

our review is for plain error.    See United States v. Olano, 507

U.S. 725, 732 (1993) (holding that, on plain error review, reversal

is warranted only if the court can (1) identify an error, (2) which

is plain, (3) which affects substantial rights, and (4) which

seriously affects the fairness, integrity, or public reputation of

judicial proceedings). Even assuming for the sake of argument that

a Collins error occurred below, Baskerville’s substantial rights

were not affected by the assumed error because his 216-month

sentence does not exceed the twenty-year statutory default maximum

sentence set forth in 21 U.S.C. § 841(b)(1)(C).   Cf. United States

v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (holding that a

sentence in excess of the authorized statutory maximum to which a

defendant would not otherwise be subject affects his substantial

rights).

     For these reasons, we affirm the judgment of the district

court.

                                                          AFFIRMED




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