                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4241


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

HOWARD EDWARD MCCALL,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:05-cr-00104-FDW-CH-16)


Submitted:    October 27, 2009              Decided:   November 20, 2009


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David W. Long, POYNER SPRUILL, LLP, Raleigh, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Following a lengthy trial, Howard Edward McCall was

convicted by a jury of conspiracy to possess with intent to

distribute    and   to   distribute      cocaine     and    cocaine    base,   in

violation of 21 U.S.C. § 846 (2006).                McCall was sentenced to

the statutory mandatory minimum of 240 months.                   See 21 U.S.C.A.

§ 841(b)(1)(A) (West 1999 & Supp. 2009) (prescribing twenty-year

minimum for cases involving fifty grams or more of a mixture or

substance containing a detectable amount of cocaine base and a

prior felony drug conviction).          Finding no error, we affirm.

           Appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which he asserts there are

no   meritorious    issues    for    appeal   but    questions      whether    the

district court erred in denying the Fed. R. Crim. P. 29 motion

for judgment of acquittal and in denying the Fed. R. Crim. P. 33

motion for new trial.        McCall filed a pro se supplemental brief,

challenging his sentence.           The Government elected not to file a

responsive brief.

           Initially,    counsel      contends   that      the   district   court

erred in denying the motion for judgment of acquittal.                   Counsel

argues that the evidence was insufficient to support the jury’s

verdict.     We review de novo the district court’s denial of a

Rule 29 motion for judgment of acquittal.                    United States v.

Perkins, 470 F.3d 150, 160 (4th Cir. 2006).                “In conducting such

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review, we must uphold a jury verdict if there is substantial

evidence, viewed in the light most favorable to the Government,

to support it.”              Id.    Both direct and circumstantial evidence

are considered, and the government is permitted “all reasonable

inferences that could be drawn in its favor.”                          United States v.

Harvey, 532 F.3d 326, 333 (4th Cir. 2008).                         The defendant “must

carry        an     imposing       burden       to    successfully        challenge     the

sufficiency of the evidence.”                   United States v. Martin, 523 F.3d

281, 288 (4th Cir.) (citation omitted), cert. denied, 129 S. Ct.

238 (2008).

                  With these standards in mind, our thorough review of

the trial transcript convinces us that McCall was involved in

“‘a loosely-knit association of members linked . . . by their

mutual interest in sustaining the overall enterprise of catering

to     the    ultimate       demands       of    a    particular     drug     consumption

market’” — Mecklenburg County.                   United States v. Burgos, 94 F.3d

849, 858 (4th Cir. 1996) (en banc) (quoting United States v.

Banks,       10    F.3d    1044,    1054    (4th     Cir.    1993)).      “[W]hile      many

conspiracies         are     executed       with     precision,     the     fact   that    a

conspiracy is loosely-knit, haphazard, or ill-conceived does not

render it any less a conspiracy — or any less unlawful.”                                  Id.

We   therefore        conclude      that    there      was   sufficient      evidence     to

support the jury’s verdict.                 See United States v. Yearwood, 518

F.3d     220,       225-26     (4th    Cir.)         (discussing    elements       of   the

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offense), cert. denied, 129 S. Ct. 137 (2008).                            To the extent

McCall argues that the Government’s case rested in large part on

the unreliable testimony of the cooperating witnesses, it is not

the    province      of    this     court    to     second-guess        the    credibility

determinations of the factfinder.                   See United States v. Wilson,

484 F.3d 267, 283 (4th Cir. 2007).

              Counsel also contends that the district court erred in

denying the motion for new trial.                    We review a district court’s

order granting or denying a motion for new trial under Rule 33

for abuse of discretion.                  United States v. Fulcher, 250 F.3d

244,    249    (4th       Cir.    2001)     (stating       standard     of     review      and

providing     standard).           Our     review    of    the   record       leads   us    to

conclude      that    the        district    court        correctly     determined         the

defendant failed to satisfy each of the Fulcher requirements.

Therefore, the district court did not abuse its discretion in

denying the motion for new trial.

              McCall contends in his pro se supplemental brief that

his sentence is unreasonable.                 When determining a sentence, the

district      court        must      calculate        the     appropriate         advisory

Guidelines range and consider it in conjunction with the factors

set forth in 18 U.S.C. § 3553(a) (2006).                      Gall v. United States,

552 U.S. 38, __, 128 S. Ct. 586, 596 (2007).                                  Further, the

district      court   “must        place    on    the     record   an     individualized

assessment [of the § 3553(a) factors] based on the particular

                                              4
facts of the case before it.”               United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks and citation

omitted).       Appellate review of a district court’s imposition of

a    sentence,       “whether     inside,    just      outside,   or   significantly

outside    the       Guidelines      range,”      is   for   abuse   of    discretion.

Gall,    128    S.    Ct.    at     591.    A     sentence    within      the    properly

calculated       Guidelines         range   is    presumed    reasonable         by   this

court.      United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007).

               The district court followed the necessary procedural

steps     in     sentencing          McCall,      appropriately        treating        the

Guidelines as advisory, properly calculating and considering the

applicable Guidelines range, and applying the § 3553(a) factors

to the facts of the case.              McCall’s 240-month sentence, which is

the Guidelines range and the statutory mandatory minimum, is

also presumptively reasonable.

               However, McCall argues that the 1995 state conviction

used for enhancement under 21 U.S.C. § 851 (2006) was obtained

in    violation       of    his     constitutional       protection       from    double

jeopardy because he was allegedly assessed a “drug tax” in North

Carolina prior to conviction.                    Since McCall did not challenge

his sentence on this basis in the district court, review is for

plain error.         See, e.g., United States v. Miller, 557 F.3d 910,

916     (8th     Cir.       2009)     (“Procedural       sentencing        errors     are

                                             5
forfeited, and therefore may be reviewed only for plain error,

if   no    objection     was    raised    in     the    district    court.”).      To

establish plain error, the defendant must show that an error

occurred, that the error was plain, and that the error affected

the defendant’s substantial rights.                United States v. Olano, 507

U.S. 725, 732-34 (1993); United States v. Massenburg, 564 F.3d

337, 342-43 (4th Cir. 2009) (stating defendant bears burden of

establishing each of the plain error requirements).                     McCall has

failed to establish each of the plain error requirements, which

is his burden.          Therefore, we conclude that the district court

did not abuse its discretion in imposing the chosen sentence.

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.       Accordingly, we affirm the judgment of the district

court.      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 this court for leave

to withdraw from representation.                  Counsel’s motion must state

that a copy thereof was served on the client.                      We dispense with

oral      argument   because     the     facts    and    legal     contentions    are




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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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