                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4878


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTOWAN THORNE, a/k/a Smooth,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:14-cr-00165-LMB-1)


Submitted:   June 17, 2015                 Decided:   June 30, 2015


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant.   Dana J. Boente, United States Attorney, Michael P.
Ben’Ary, Assistant United States Attorney, Marc J. Birnbaum,
Special Assistant United States Attorney, Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Following a bench trial, Antowan Thorne was convicted of

the lesser-included charge of conspiracy to distribute 100 grams

or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846

(2012).      The       district   court        sentenced       Thorne     to    300   months’

imprisonment,          which    was   in       the      middle       of   his     Sentencing

Guidelines range of 262-327 months.                          The calculation of this

range was driven by Thorne’s career offender designation.                                    See

U.S. Sentencing Guidelines Manual § 4B1.1 (2014).                               This appeal

timely followed.

     On appeal, Thorne raises four issues for our consideration.

He first challenges the sufficiency of the Government’s evidence

underlying       his    conviction       and    takes        issue    with     the    district

court’s decision to credit the cooperating witness’s testimony.

Thorne’s   next        three    issues    relate        to    the    computation       of    his

Guidelines range.          Specifically, Thorne asserts that one of his

career offender predicates was improperly counted and that the

district court erred in enhancing his base offense level for

possessing a firearm and obstructing justice.                             For the reasons

that follow, we reject these arguments and affirm the judgment.

                                               I.

     Thorne      first     contends       that       the     district     court      erred    in

denying    his     Fed.    R.   Crim.     P.       29   motions      during     and    at    the

conclusion of trial.            We review de novo the denial of a Rule 29

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motion for a judgment of acquittal.                United States v. Strayhorn,

743 F.3d 917, 921 (4th Cir.), cert. denied, 134 S. Ct. 2689

(2014).     A defendant challenging the sufficiency of the evidence

faces “a heavy burden.”            United States v. McLean, 715 F.3d 129,

137 (4th Cir. 2013) (internal quotation marks omitted).                               The

verdict must be sustained if “there is substantial evidence in

the    record,     when   viewed    in    the    light   most     favorable     to     the

government,       to    support    the    conviction.”           United      States    v.

Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal quotation

marks    omitted).         “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.”      Id.    (internal        quotation        marks     and

alteration omitted).            Furthermore, it is the trier-of-fact, “not

the    reviewing       court,    [that]    weighs    the     credibility        of    the

evidence     and        resolves     any        conflicts        in    the     evidence

presented[.]”          McLean, 715 F.3d at 137 (internal quotation marks

omitted).        “Reversal for insufficient evidence is reserved for

the rare case where the prosecution’s failure is clear.”                         United

States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal

quotation marks omitted).

       To convict Thorne of conspiracy to distribute heroin, the

Government had to prove the following essential elements:                            “(1)

an agreement between two or more persons to engage in conduct

                                           3
that violates a federal drug law; (2) the defendant’s knowledge

of the conspiracy; and (3) the defendant’s knowing and voluntary

participation in the conspiracy.”                   United States v. Green, 599

F.3d 360, 367 (4th Cir. 2010).

     With    these      standards        in       mind,    we     conclude      that     the

Government’s        evidence     was     more      than       sufficient      to    support

Thorne’s conviction.           The cooperating witness testified that,

during the time period alleged in the indictment, the witness

and Thorne worked together to sell Thorne’s heroin to a broader

array of customers.         Thorne was the witness’s primary source for

heroin, and the witness sold between 100 and 150 grams of heroin

obtained    from     Thorne.      Their       relationship           was    based   on   the

common goal of selling more drugs and thus making more money.

     Thorne nonetheless contends that the Government failed to

demonstrate a conspiracy because there was no direct evidence of

an agreement between Thorne and any co-conspirator; none of the

purchasers further sold the heroin they obtained from Thorne;

and there was no testimony establishing profit-sharing.                              Thorne

contends    that     the   witness     was,        at   the     most,      simply   another

customer of Thorne’s.

     Thorne’s       arguments     fail        on    this       record.        Individuals

involved in drug trafficking ventures do not memorialize their

agreements     in     writing,     and     we      have       long    recognized       that,

“[g]iven the ‘clandestine and covert’ nature of conspiracies,

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the    government       can    prove        the       existence     of   a   conspiracy     by

circumstantial evidence alone.”                        United States v. Howard, 773

F.3d 519, 525 (4th Cir. 2014).                    Here, though, the Government had

more     than       circumstantial          evidence;         the    witness    testified,

directly, as to the purpose of joining forces with Thorne and to

obtaining heroin from Thorne for resale.                            See United States v.

Edmonds, 679 F.3d 169, 174 (4th Cir.) (“[A]ny agreement made in

addition to or beyond the bare buy-sell transaction may be taken

to    infer     a   joint     enterprise          between     the    parties    beyond     the

simple distribution transaction and thereby support a finding of

conspiracy.”), vacated on other grounds, 133 S. Ct. 376 (2012).

Finally,        the    lack    of         evidence       of   profit-sharing        is     not

dispositive of whether a drug-trafficking conspiracy exists.

       Thorne’s       attempts       to    undermine       the    witness’s    credibility

likewise are unsuccessful.                  The district court, sitting as the

trier-of-fact, was in the best position to weigh the witness’s

credibility and demeanor, and acted well within its bounds in

choosing to credit the witness’s testimony.                              See United States

v. Crawford, 734 F.3d 339, 343 (4th Cir. 2013) (compiling Fourth

Circuit precedent for the proposition that, “although the fact-

finder    can       consider     a    witness’s          status     as   a   drug   user    or

criminal history in assessing his or her credibility, this Court

has not found that these attributes render a witness per se

unreliable”), cert. denied, 134 S. Ct. 1528 (2014).                            And, as the

                                                  5
district court noted, the witness’s testimony was corroborated

by     testimony           from    two   other       witnesses     who   regularly       and

frequently purchased heroin from both Thorne and the witness.

We thus affirm Thorne’s conviction.

                                              II.

       Thorne’s primary sentencing argument is that the district

court committed reversible procedural error in its application

of the modified categorical approach in determining his career

offender status.             For the reasons that follow, we find any error

in this regard to be harmless and thus affirm Thorne’s career

offender designation.

       We     review        any    criminal     sentence,     “whether    inside,       just

outside,         or    significantly      outside      the   Guidelines       range,”    for

procedural and substantive reasonableness, 1 “under a deferential

abuse-of-discretion standard.”                   United States v. King, 673 F.3d

274, 283 (4th Cir. 2012); see Gall v. United States, 552 U.S.

38,        46,        51    (2007).        In        first    evaluating       procedural

reasonableness, this court considers whether the district court

properly calculated the defendant’s advisory Guidelines range,

gave    the      parties      an    opportunity       to   argue   for   an   appropriate

sentence, considered the 18 U.S.C. § 3553(a) (2012) factors,



       1
       Thorne does not challenge the substantive reasonableness
of his sentence.



                                                 6
selected a sentence supported by the record, and sufficiently

explained that sentence.           See Gall, 552 U.S. at 51.

     A defendant is a career offender if he was at least 18

years    old   at   the    time    of    the   instant   offense,      the    instant

offense is a drug felony or crime of violence, and the defendant

has at least two prior felony convictions for drug offenses or

crimes    of   violence.          USSG   § 4B1.1(a).      A    prior       conviction

qualifies as a “crime of violence” if the offense is punishable

by more than one year of imprisonment and, as relevant to this

case, “has as an element the use, attempted use, or threatened

use of physical force against the person of another[.]”                          USSG

§ 4B1.2(a)(1).        This court reviews de novo the district court’s

conclusion     that    a   prior    conviction     qualifies    as     a     crime   of

violence.      See United States v. Gomez, 690 F.3d 194, 197 (4th

Cir. 2012).

     Thorne only contests the viability of his second career

offender predicate, to wit:              Thorne’s 2008 guilty plea, in the

Superior Court for the District of Columbia, to conspiracy to

obstruct justice, and resulting 36-month sentence.                     Thorne pled

guilty to violating D.C. Code § 22-722(a)(2)(A), which provides,

in relevant part:

     A person commits the offense of obstruction of justice
     if that person:

     (2) Knowingly uses intimidating or physical force,
     threatens or corruptly persuades another person, or by

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     threatening letter or communication, endeavors to
     influence, intimidate, or impede a witness or officer
     in any official proceeding, with intent to:

     (A)   Influence,  delay,   or   prevent  the   truthful
     testimony of the person in an official proceeding[.]

     In    his       objection       to   the    use      of   this    predicate,       Thorne

argued    that       this    statute      of    conviction       was    divisible,       under

Descamps v. United States, 133 S. Ct. 2276 (2013), and thus that

the court needed to utilize the modified categorical approach to

determine       if    Thorne’s        conviction          qualified     as   a    crime     of

violence.       Considering only the factual proffer that accompanied

Thorne’s plea agreement in that matter, defense counsel argued

that it did not support a finding that Thorne was convicted of a

crime of violence because it established, at the most, a threat

of harm to an individual made vis-à-vis a third party.

     The district court first rejected this argument based on

the factual proffer.              But the court went on to buttress this

conclusion       by     citing        the       magistrate       judge’s     report        and

recommendation,             in   Thorne’s           unrelated     supervised        release

revocation       proceeding       in      another      federal    district       court,     in

which     the    magistrate          judge      recommended       finding        that     this

conviction qualified as a crime of violence under the modified

categorical approach.

     On    appeal,          Thorne     claims       the    district     court     committed

reversible procedural error in relying on the magistrate judge’s



                                                8
recommendation to support its analysis.                  As we have explained,

the modified categorical approach:

      [M]ay be used in cases where the state statute under
      which the defendant was previously convicted sets out
      one   or  more   elements   of  the   offense  in   the
      alternative, but not where the statute is indivisible.
      Moreover,   even   under   the   modified   categorical
      approach, the later court is generally limited to
      examining the statutory definition, charging document,
      written plea agreement, transcript of plea colloquy,
      and any explicit factual finding by the trial judge to
      which the defendant assented.       The judge may not
      consider police reports or complaint applications.

United States v. Flores-Granados, 783 F.3d 487, 491 (4th Cir.

2015) (internal quotation marks and citations omitted).                  We thus

agree     that    the      district   court      erred    in   considering   the

magistrate       judge’s    report    in   the    unrelated    revocation    case

because this is not a Shepard 2-approved source.

      However, this error is rendered harmless by the fact that

the district court announced a perfectly sound basis for the

same finding immediately prior to noting its consideration of

the     magistrate      judge’s   report:        that    the   factual   proffer

accompanying       the     plea   agreement      established     that    Thorne’s


      2Shepard v. United States, 544 U.S. 13 (2005).      As we
recently explained, in assessing a prior guilty plea, Shepard-
approved   documents   include “the   charging  document,   plea
agreement, plea transcript between the judge and the defendant
in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this
information.”    United States v. Span, __ F.3d __, 2015 WL
3541800, at *4 (4th Cir. June 8, 2015) (internal quotation marks
omitted).



                                           9
conviction was for a crime of violence.                   Indeed, the agreed-upon

factual proffer clearly established that the threatened use of

physical     force    against      another     was    an    element         of    Thorne’s

conviction    under    D.C.     Code    § 22-722(a)(2)(A)          —    even      if   that

threat was not directly communicated to the intended victim.

See USSG § 4B1.2(a)(1).

     Significantly,       Thorne        does   not        challenge         the   general

propriety of the district court’s utilization of the modified

categorical     approach      or    reliance         on    this    Shepard-approved

source, and we discern no error in the court’s conclusion based

thereon.     We thus affirm the career offender designation despite

the procedural error.         See United States v. Savillon–Matute, 636

F.3d 119, 123–24 (4th Cir. 2011) (explaining the harmless error

analysis     employed      when        evaluating         claims       of     procedural

sentencing error).

     Our disposition of this issue effectively moots Thorne’s

challenges to the two-level firearm enhancement and the two-

level obstruction of justice adjustment.                     Because the offense

level established under the career offender Guideline was more

than the offense level calculated using the Guidelines for the

drug offense including any specific offense characteristic or




                                          10
adjustment, 3 neither the firearm enhancement nor the obstruction

adjustment     affected    Thorne’s    sentence.    Accordingly,      we    find

these arguments are moot.

     For these reasons, we affirm the criminal judgment.                     We

deny Thorne’s motion to file a pro se supplemental brief in this

counseled appeal.         We dispense with oral argument because the

facts    and   legal    contentions    are   adequately   presented    in   the

materials      before   this   court   and   argument   would   not   aid   the

decisional process.

                                                                      AFFIRMED




     3 Prior to application of the career offender Guideline,
Thorne had an adjusted offense level of 32 and his criminal
history category was IV.    As a career offender, Thorne’s total
adjusted offense level increased to 34, and he was placed in
criminal history category VI. See USSG § 4B1.1(b)(2).



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