                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-4353



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL CHARLES PARKER,

                                              Defendant - Appellant.



                             No. 07-4373



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL CHARLES PARKER,

                                              Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.     Robert E. Payne, Senior
District Judge. (3:06-cr-00384-REP; 3:03-cr-00379-REP)


Submitted:   July 16, 2008                 Decided:   August 26, 2008


Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Olivia N.
Hawkins, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Michael C. Parker appeals his conviction and sixty-month

sentence following a jury trial of one count of distribution of

cocaine base, in violation of 21 U.S.C. § 841 (2000) (Appeal No.

07-4353).    Based on this conviction, Parker was also found guilty

of violating the terms and conditions of a previously-imposed term

of   supervised    release   and   was       sentenced   to    an    additional

twenty-four months’ imprisonment (Appeal No. 07-4373), to run

consecutively with his sixty-month sentence on the distribution

charge.*    On appeal, Parker argues that the district court erred in

denying his motion for judgment of acquittal because the evidence

was insufficient to sustain the jury’s verdict on the distribution

charge.     Parker also argues that the district court erred in

departing upward pursuant to U.S. Sentencing Guidelines Manual §

4A1.3 (2006), on the ground that criminal history category VI

substantially under-represented the seriousness of his criminal

history. For the following reasons, we affirm the district court’s

judgment in each matter.

            A defendant challenging the sufficiency of the evidence

faces a “heavy burden.”      United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997) (internal quotation marks omitted).                  “[A]n

appellate     court’s   reversal   of    a     conviction     on    grounds   of



     *
      Parker’s challenge to the revocation of his supervised
release is subsumed in his challenge to his § 841 conviction.

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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) (internal quotation marks omitted).                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).    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 the defendant’s guilt beyond

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

Cir. 1996) (en banc).      We do not review the credibility of the

witnesses, and we 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).

          The elements of Parker’s offense of conviction are:

(1) knowing or intentional distribution of the controlled substance

stated in the indictment, and (2) knowledge, at the time of

distribution, that the substance distributed was a controlled

substance.     United States v. Brower, 336 F.3d 274, 276 (4th Cir.

2003).   To distribute a controlled substance means to deliver it;

delivery, in turn, is “the actual, constructive, or attempted

transfer of a controlled substance.”         United States v. Washington,

41 F.3d 917, 919 (4th Cir. 1994) (internal quotations and citation


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information omitted).             Our review of the record confirms that the

evidence presented to the jury was sufficient to prove that Parker

knowingly    distributed           cocaine    base.       For   this    reason,     his

conviction       and   the   revocation       of   his    supervised    release     are

affirmed.

            Next,      Parker       appeals    his    sentence.        After    United

States v. Booker, 543 U.S. 220 (2005), a district court is no

longer bound by the range prescribed by the sentencing guidelines.

Instead, in choosing a sentence, a district court must (1) properly

calculate the advisory guideline range; (2) allow the parties to

argue for an appropriate sentence; (3) consider the § 3553(a)

factors     in    light      of    the   parties’        arguments     and   make    an

individualized assessment based on the facts; and (4) adequately

explain its reasons for choosing the sentence (the explanation must

include the justifications for any variance from the guidelines).

See Gall v. United States, 128 S. Ct. 586, 596-97 (2007); United

States v. Evans, 526 F.3d 155, 160-61 (4th Cir. 2008).                       We review

a district court’s choice of sentence for abuse of discretion.

Gall, 128 S. Ct. at 597.

            The district court correctly calculated the advisory

guidelines range and heard arguments from the parties.                       The court

determined that the advisory guidelines range did not satisfy the

§ 3553(a) factors because of the “serious” and “unrelenting nature”




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of Parker’s criminal history and his admission that he would

continue to violate the law.     J.A. 441.

           Relying on USSG § 4A1.3, the district court then imposed

a sentence of sixty months, twenty-three months above the top of

the pre-departure advisory range.           According to USSG § 4A1.3, a

district court may depart upward from an applicable guidelines

range if “reliable information indicates that the criminal history

category   does   not   adequately   reflect    the    seriousness   of   the

defendant’s past criminal conduct or the likelihood that the

defendant will commit other crimes.”          USSG § 4A1.3.    In deciding

whether a departure is warranted under § 4A1.3, a sentencing court

may consider uncounted prior sentences and prior similar adult

conduct    not    resulting    in     criminal        conviction.         USSG

§ 4A1.3(a)(2)(A), (E).

           Considering Parker’s history of recidivism, much of which

occurred while he was on supervised release, the nature of his

criminal conduct, and his history of lenient punishments and

rejection of rehabilitation, we conclude that the district court

acted reasonably in departing upward. Moreover, the court departed

above category VI by following the “incremental approach” mandated

by § 4A1.3(a)(4)(B). The district court explicitly determined that

each intervening level was insufficient, and then moved down the

sentencing table to the next higher offense level until it reached

a Level 17, which it felt was appropriate.        The district court thus


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adequately   articulated   its   reasons   for   departing   from   the

guidelines range.    We accordingly conclude that the sentence

imposed upon the § 841 conviction was not an abuse of discretion.

          We therefore affirm the district court’s judgment.         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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