                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5101


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DELANTE ROPER, a/k/a Puff, a/k/a Kevin,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:08-cr-00039-GEC-2)


Submitted:   December 29, 2010           Decided:   February 17, 2011


Before MOTZ, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


R. Darren Bostic, BOSTIC & BOSTIC, PC, Harrisonburg, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney, Ryan
L. Souders, Assistant United States Attorney, Harrisonburg,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A     jury   convicted    Delante      Roper      of     conspiracy   to

distribute five grams or more of cocaine base (count one), 18

U.S.C.    §§ 841(a)(1),       (b)(1)(A),    846    (2006),         distribution   of

cocaine base (counts four and eight), 18 U.S.C. § 841(a)(1),

(b)(1)(C), and possession with intent to distribute cocaine base

(count ten), 18 U.S.C. § 841(a)(1), (b)(1)(C).                     He was sentenced

to 360 months’ imprisonment.               On appeal, he argues that (1)

there was insufficient evidence to support the jury’s verdict as

to counts one and ten; (2) the district court erred in denying

him   a   reduction      in   his    offense      level    for      acceptance    of

responsibility; and (3) he was improperly classified a career

offender.       We affirm.

            We review a district court’s denial of a Fed. R. Crim.

P. 29 motion de novo.           United States v. Alerre, 430 F.3d 681,

693 (4th Cir. 2005).          “A defendant challenging the sufficiency

of the evidence to support his conviction bears a heavy burden.”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)

(internal quotation marks omitted).               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); see United States v. Perkins,

470 F.3d 150, 160 (4th Cir. 2006).                  Substantial evidence is

“evidence   that     a   reasonable    finder     of   fact    could     accept   as

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adequate and sufficient to support a conclusion of a defendant’s

guilt    beyond    a    reasonable       doubt.”       Alerre,        430      F.3d     at    693

(internal       quotation        marks      omitted).            We          consider        both

circumstantial         and     direct      evidence,       drawing       all     reasonable

inferences from such evidence in the Government’s favor.                                United

States    v.    Harvey,      532    F.3d    326,     333    (4th      Cir.      2008).        In

resolving issues of substantial evidence, we do not reweigh the

evidence or reassess the factfinder’s determination of witness

credibility, see United States v. Brooks, 524 F.3d 549, 563 (4th

Cir.    2008),    and    “can      reverse       a   conviction         on    insufficiency

grounds only when the prosecution’s failure is clear.”                                  United

States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc)

(internal quotation marks omitted).

               To prove a drug conspiracy, the Government is required

to show: “(1) an agreement between two or more persons to engage

in conduct 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.

Kellam, 568 F.3d 125, 139 (4th Cir.) (internal quotation marks

and    citation    omitted),        cert.    denied,       130   S.     Ct.     657   (2009).

“The existence of a tacit or mutual understanding is sufficient

to establish a conspiratorial agreement, and the proof of an

agreement       need     not       be   direct--it         may     be        inferred        from

circumstantial         evidence.”        Id.     (internal       quotation       marks        and

                                             3
citation      omitted).           “After        a        conspiracy    is     shown        to

exist, . . . the        evidence      need          only      establish       a     slight

connection between the defendant and the conspiracy to support

[the] conviction.”        Id. (internal quotation marks omitted).

              With respect to count ten, the Government was required

to    prove   “(1)    possession     of    the           controlled    substance;         (2)

knowledge of the possession; and (3) intent to distribute.”                               See

United States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009).

We have reviewed the transcript of the jury trial in light of

Roper’s    arguments    on   appeal       and       we    conclude    that    sufficient

evidence supports the jury’s verdict as to both counts one and

ten.

              A   sentence   is   reviewed          for    reasonableness         under    an

abuse of discretion standard.              Gall v. United States, 552 U.S.

38, 51 (2007).        This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                              Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

After determining whether the district court properly calculated

the    defendant’s     advisory      Guidelines            range,     we    must    decide

whether the district court considered the 18 U.S.C. § 3553(a)

(2006) factors, analyzed the arguments presented by the parties,

and sufficiently explained the selected sentence.                             Lynn, 592

F.3d at 575-76; see also United States v. Carter, 564 F.3d 325,

330 (4th Cir. 2009) (holding that, while the “individualized

                                           4
assessment    need    not      be       elaborate    or    lengthy,     . . .    it   must

provide a rationale tailored to the particular case . . . and

[be] adequate to permit meaningful appellate review”).                           Properly

preserved claims of procedural error are subject to harmless

error review.       Lynn, 592 F.3d at 576.

           Roper first contends that the district court erred in

denying him a reduction in his offense level for acceptance of

responsibility under U.S. Sentencing Guidelines Manual § 3E1.1

(2008).      Roper argues that he was entitled to the reduction

because he admitted to the probation officer that he distributed

cocaine base and he “freely admitted that he was involved in the

drug distribution trade” even though “in his view he was not

really a member of the conspiracy.”

           We     review       a    district       court’s   decision     to     deny   an

adjustment    for    acceptance           of   responsibility     for    clear     error.

United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007).

Pursuant     to   USSG     §       3E1.1,      a   reduction     for    acceptance      of

responsibility       is     appropriate            “[i]f   the   defendant        clearly

demonstrates acceptance of responsibility for his offense”; it

“is not intended to apply to a defendant who puts the government

to its burden of proof at trial by denying the essential factual

elements     of     guilt,         is    convicted,        and   only     then     admits

guilt . . . .”       USSG § 3E1.1, cmt. n.2.                 However, a conviction

by trial “does not automatically preclude a defendant” from such

                                               5
an    adjustment,    and   in   “rare”       situations,      such   as    where    “a

defendant goes to trial to assert and preserve issues that do

not relate to factual guilt,” the adjustment may be appropriate.

Id.     Under the facts of this case, we find no clear error in the

district court’s denial of the reduction based on acceptance of

responsibility.

             Last, Roper challenges his career offender status.                     We

review de novo the district court’s classification of Roper as a

career offender and review for clear error its factual findings.

United States v. Farrior, 535 F.3d 210, 223 (4th Cir. 2008).

Pursuant to USSG § 4B1.1(a), a defendant is a career offender

if:

       (1) the defendant was at least eighteen years old at
       the time the defendant committed the instant offense
       of conviction; (2) the instant offense of conviction
       is a felony that is either a crime of violence or a
       controlled substance offense; and (3) the defendant
       has at least two prior felony convictions of either a
       crime of violence or a controlled substance offense.

USSG § 4B1.1(a).

             In designating Roper a career offender, the probation

officer relied on Roper’s prior convictions for (1) distribution

of cocaine/possession with intent to distribute cocaine in 1992-

93;   and    (2)   possession   with   intent     to    distribute        cocaine   in

2003.       Roper does not dispute that the prior convictions are

controlled     substance   offenses      or    that    they   carried      sentences

exceeding one year and one month; rather, he argues the 1992-93

                                         6
convictions       were     not   imposed    “within     fifteen    years    of    [his]

commencement       of     the    instant   offense,”     or   “resulted     in    [him]

being incarcerated during any part of such fifteen-year period,”

as required under USSG § 4A1.2(e)(1).                    He points to the fact

that the 1992-93 convictions had a sentencing date just eleven

days within the fifteen-year time frame and that the presentence

report does not state the date of conviction, only the date of

arrest     (June    20,     1992)    and   sentence     (July     29,   1993).      He

therefore argues that the district court had insufficient basis

to   conclude       that    his     1992-93     convictions      were   within     the

requisite time period.

             We      conclude        the      1992-93     controlled        substance

convictions        fall    within    the   requisite      time    frame     and   were

properly counted for purposes of the career offender guideline.

A conviction counts in the computation of criminal history if

the defendant was “incarcerated during any part” of the period

“within fifteen years of the defendant’s commencement of the

instant offense.”           USSG § 4A1.2(e)(1).          Roper was sentenced to

incarceration not to exceed three years on July 29, 1993, and he

was released from custody on February 11, 1995, after serving

not less than sixteen months.              The present offense of conviction

commenced no later than July 18, 2008, approximately thirteen

years and five months after Roper’s release from incarceration

on   his    1992-93        convictions.         Accordingly,      Roper’s     1992-93

                                            7
convictions     were    properly   counted    and      served    as    predicate

convictions for his career offender designation.

            Accordingly,      we   affirm    Roper’s       convictions       and

sentence.      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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