                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-4672



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KIRT R. KING, a/k/a Birdman, a/k/a Kirk King,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph Robert Goodwin,
Chief District Judge. (CR-04-127)


Submitted:   August 31, 2007            Decided:   September 10, 2007


Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dennis H. Curry, Spencer, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, R. Gregory McVey, Assistant United
States Attorney, Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Kirt R. King was convicted by a jury of conspiracy to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§ 846 (2000) (Count 1), distribution of cocaine, in violation of 21

U.S.C. § 841(a)(1) (2000) (Counts 8 and 14), possession of a

firearm in furtherance of drug trafficking, in violation of 18

U.S.C. § 924(c) (2000) (Count 15), and conspiracy to commit money

laundering, in violation of 18 U.S.C. § 1956(h) (2000) (Count 16).

The   district   court   sentenced   King   to   240   total   months   of

imprisonment,1 as well as five years of supervised release, and

ordered payment of a $500 special assessment.2         By counsel, King

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), in which he asserted that the district court clearly erred

in denying his co-defendant’s motion3 for a mistrial pursuant to

Fed. R. Crim. P. 29, based on alleged Giglio4 violations by the



      1
      The district court sentenced King to 180 months’ imprisonment
on the cocaine and money laundering charges, followed by a
consecutive 60-month sentence on the charge of possession of a
firearm in furtherance of drug trafficking.
      2
      The probation officer calculated an advisory guideline
imprisonment range based on the U.S. Sentencing Guidelines Manual
on the drug and money laundering charges of 292-365 months, based
on a base offense level of 34, to which three, two-level increases
were added, for conviction under 18 U.S.C. § 1956, organizer of the
conspiracy, and obstruction of justice, resulting in a total
offense level of 40 and a criminal history category of I.
      3
       King joined in the objection.
      4
       Giglio v. United States, 405 U.S. 150 (1972).

                                 - 2 -
Government, but concluding that there was no merit to the claim.

King filed a pro se supplemental brief alleging:            (1) violation of

his right to speedy trial; (2) the district court erred when it

constructively amended Count 16; (3) the district court abused its

discretion by giving a “willful blindness” instruction to the jury;

(4) the district court erred in denying his Rule 29 motion as to

Counts 15 and 16; (5) the district court plainly erred when it

failed to give proper jury instructions; and (6) his sentence was

unreasonable.     For the reasons set forth below, we affirm.

             The sole issue raised on appeal by King’s counsel is that

the district court erred in denying a motion for mistrial based on

violations of Giglio by the Government.           Specifically, counsel

points to the cross-examination of Sherman King, a key confidential

informant, which revealed unexpectedly that he worked for the

Government     previously   and   had   been   paid   for    his   services.

Following Sherman King’s admission that he had worked for the

Government in 1995 against “four or five” people, counsel for

codefendant Dane Mason objected, stating that he had no previous

notice of that Giglio material. Further objections were interposed

by the defense as the trial progressed when a further violation of

Giglio was discovered by the defense during cross-examination, when

Agent Douglas Sturm and confidential informant Tim Wise testified

that the Government had taken care of a DUI charge on behalf of




                                   - 3 -
Wise, and it was determined that the Government had failed to

disclose this information to the defense prior to trial.

             As King failed to object when the district court denied

his codefendant’s motion for mistrial based on the alleged Giglio

violation regarding Sherman King, we review his claim for plain

error. United States v. Olano, 507 U.S. 725, 733-37 (1993); United

States v. Cedelle, 89 F.3d 181, 185 (4th Cir. 1996).            The record

reflects that the information regarding Sherman King’s previous

work as a confidential informant in another case was provided to

all counsel at trial, that King had an opportunity to cross-examine

Sherman King with regard to the information and materials provided,

and that King did not move for a mistrial based on this alleged

violation.    Given this, we find that King cannot demonstrate that

the evidence was material, as there is no showing of any reasonable

probability that its earlier disclosure would have produced a

different outcome.     See United States v. Bagley, 473 U.S. 667, 682

(1985); United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994).

             In   addition,   with   regard   to   King’s   alleged   Giglio

violation involving Wise, the record demonstrates that King made no

motion for a mistrial, and that he failed to object when Dane

Mason’s motion for mistrial was denied.            Moreover, Dane Mason’s

motion for mistrial was based on a misunderstanding that Wise’s

statutory witness fee was instead a payment for additional work as

a confidential informant.


                                     - 4 -
            We find no error by the district court in denying the

motions for mistrial based on Giglio violations, nor was there any

prejudice to King in the district court’s rulings.   Thus, King has

not established plain error and his claims are without merit.

            King, pro se, asserts that his speedy trial rights were

violated.   Because King did not object at trial, our review is for

plain error.    Olano, 507 U.S. at 732.

            The record reflects that King was indicted on June 15,

2004, and that his trial commenced on November 30, 2004.   However,

he filed three continuance motions, and the time periods from

August 17 through October 5, 2004, and October 5 through November

30, 2004, were properly excludable from the running of the speedy

trial clock by virtue of King’s filings, as was the district

court’s granting of two of the motions for continuance.      After

excluding these periods from the speedy trial calculation, King was

tried well within the seventy-day statutory time period required by

18 U.S.C. § 3161 (2000).

            King’s next pro se challenge is to the district court’s

alleged constructive amendment to King’s indictment when it allowed

the Government to remove the structured element from the jury

instructions with regard to the money laundering charge in Count

16.5   A constructive amendment to an indictment occurs when either


       5
      The charging language of Count 16 alleged that King conspired
“to avoid a transaction reporting requirement under State or
Federal law,” that is, that “Kirt R. King and Lois King . . . did

                                - 5 -
the   government     or   the    court      broadens   the   possible    bases    for

conviction beyond those charged by the grand jury.                 United States

v. Bolden, 325 F.3d 471, 493 (4th Cir. 2003).                     Again, King’s

failure to challenge this issue at the district court level renders

our review for plain error.            Olano, 507 U.S. at 735.

            While King is correct that the district court allowed the

Government to redact that portion of the indictment regarding the

illegal structure of financial transactions, that portion was a

small part of the “Manner and Means of the Conspiracy” section of

the    indictment,       and    did   not    affect    the   elements     of   money

laundering. King has not alleged, nor have we found, any prejudice

as    a   result    of    the    redaction     of   the   language      related   to

structuring, and we find that the evidence presented at trial did

not alter the crime charged in the indictment, but rather effected

a mere variance, which did not violate King’s constitutional

rights.    See United States v. Randall, 171 F.3d 195, 203 (4th Cir.

1999).     As the essential elements of the money laundering count

were not affected by the redaction, the district court’s decision

to allow the redaction was not a constructive amendment of the

indictment    and    thus,      did   not    broaden   the   possible    bases    for

conviction beyond those charged by the grand jury.                 Hence, King’s

claim is without merit.


illegally structure one or more financial transactions to avoid
reporting requirements, in violation of 31 U.S.C. § 5324(a)(3).”
(J.A. 33, 35).

                                         - 6 -
           Next, King asserts that the district court erred in

giving a “willful blindness” instruction to the jury.                 As King

acknowledges, we review for abuse of discretion the district

court’s   decision   to   grant   the   request   for   a   particular   jury

instruction.     United States v. Abbas, 74 F.3d 506, 513 (4th Cir.

1996).    Here, King objects to the court’s allowing the Government

to include a “willful blindness” instruction to the jury relative

to the knowledge of his mother, Lois King, of the illegal nature of

the funds involved in the money laundering conspiracy.            King seeks

to have his conviction relative to Count 16 (money laundering

conspiracy) vacated on the ground that if Lois King did not know

that the property represented the proceeds from the distribution of

cocaine, he could not be guilty of illegally conspiring with her to

launder money.

            King misconstrues the law for willful blindness, and its

applicability to this case.       The element of knowledge in the crime

of conspiracy may be satisfied by a showing that a defendant acted

with   willful   blindness,   as    willful   blindness      is   a   form   of

constructive knowledge which “allows the jury to impute the element

of knowledge to the defendant if the evidence indicates that he

purposely closed his eyes to avoid knowing what was taking place

around him.”     United States v. Schnabel, 939 F.2d 197, 203 (4th

Cir. 1991).      Because willful blindness serves as a proxy for

knowledge, there is nothing inconsistent in the determination that


                                   - 7 -
a defendant knowingly was part of a conspiracy even where willfully

blind to the conspiracy’s existence and purpose. See United States

v. McIver, 470 F.3d 550, 563-64 (4th Cir. 2006).          Hence, we find no

abuse of the district court’s discretion in granting the willful

blindness instruction with regard to Lois King, even assuming,

arguendo, that the Government failed to prove actual knowledge, nor

was   there    any   inconsistency   in   giving   the   willful   blindness

instruction to the jury and allowing the conspiracy charge against

King to go to the jury.

              King next asserts specific error in the district court’s

denial of his Fed. R. Crim. P. 29 motions as to Counts 15 and 16.

We review de novo the district court’s decision to deny a Rule 29

motion.   United States v. Smith, 451 F.3d 209, 216 (4th Cir.),

cert. denied, 127 S. Ct. 197 (2006).           With regard to Count 16

(conspiracy to launder money), King again bases his claim on the

perceived inconsistency between the district court’s grant of the

willful blindness jury instruction for Lois King and the element of

knowledge required to establish a conspiracy.              For the reasons

previously stated, this claim is without merit.

              He further asserts error in the district court’s denial

of his Rule 29 motion for judgment of acquittal as to Count 15

(firearm possession in furtherance of drug trafficking), on the

ground that the evidence was insufficient to support the jury

charge.    Specifically, he contends that the Government’s proof


                                     - 8 -
established    only   that   he   possessed     a    firearm    “during    and   in

relation to” drug trafficking, and that there was no evidence

presented that he possessed the firearm “in furtherance of” drug

trafficking, that is, to help, promote, advance, or progress his

trafficking of cocaine.        Where, as here, the Rule 29 motion was

based on a claim of insufficient evidence, “[t]he verdict of a jury

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); Smith, 451 F.3d at 216.

This court has “defined ‘substantial evidence’ as ‘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.’”    Smith, 451 F.3d at 216 (quoting United States v. Burgos,

94 F.3d 849, 862 (4th Cir. 1996) (en banc)).               We “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.)   (internal     quotation   marks   and       citation   omitted),    cert.

denied, 127 S. Ct. 452 (2006).          We “must remain cognizant of the

fact that the jury, not the reviewing court, weighs the credibility

of   the   evidence   and    resolves   any   conflicts        in   the   evidence

presented, and if the evidence supports different, reasonable

interpretations, the jury decides which interpretation to believe.”

Burgos, 94 F.3d at 862 (internal quotation marks omitted).                       To

establish a violation of 18 U.S.C.A. § 924(c), the Government must


                                    - 9 -
prove that the defendant possessed a firearm and that the firearm

“furthered, advanced, or helped forward a drug trafficking crime.”

United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (citing

examples of “numerous ways in which a firearm might further or

advance drug trafficking,” such as providing personal protection,

peacekeeping, enforcement, and the defense of drugs, drug proceeds,

or turf).

            The Government presented the trial testimony of Mario

Mason,   who   testified   that   King   carried   a   weapon   when   Mason

accompanied King on King’s cocaine runs, and that individuals had

made threats to King.      Sherman King testified that King obtained a

license to carry a concealed weapon after receiving threats of

physical harm from individuals who were known to be involved with

drugs.   Marcus Henderson testified that while the gun King carried

was unrelated to drugs, King kept a gun because people were

attempting to harm and take money from King.

            Trial evidence further established that on June 2, 2004,

when agents entered the home in which King lived to execute a

search warrant, a grocery bag containing approximately $25,000 in

rolled bills and a loaded H&K .40 caliber handgun was found within

King’s arm’s reach.        During a search of the kitchen, agents

discovered 116.5 grams of cocaine in the freezer section of King’s

refrigerator, and a loaded .380 caliber handgun on top of that

refrigerator.     Additional evidence demonstrated that from 1997


                                  - 10 -
until his arrest, King’s sole source of income was from cocaine

sales, and that King was known to transport rolled cash in grocery

bags as part of the conspiracy.

           Thus, the Government presented evidence that King lived

in and sold drugs out of the house in which the guns were located,

that he acquired the guns for protection, and that the guns were

loaded and found in close proximity to drugs, cash, and other

indicia of drug activity.        The type of firearms, the proximity of

the weapons in relation to the cocaine and drug proceeds, and the

testimony that King relied on the weapons for personal protection

from other known drug dealers provide the evidentiary bases for the

jury’s verdict on Count 15.            See Lomax, 293 F.3d at 705; see

generally, United States v. Ceballos-Torres, 218 F.3d 409, 412 (5th

Cir. 2000).   Viewing the evidence in the light most favorable to

the Government and assuming that the jury resolved all conflicts in

testimony in favor of the Government, United States v. Romer, 148

F.3d 359, 364 (4th Cir. 1998), we find that the evidence was

sufficient to support the jury’s conclusion that King used the

firearms to afford him “some advantage (actual or potential, real

or contingent) relevant to the vicissitudes of drug trafficking.”

United   States   v.   Lewter,   402    F.3d   319,    322   (2d   Cir.    2005).

Accordingly, we reject King’s claim on this issue.

           King   next    asserts      abuse   of     the    district     court’s

discretion in its denial of the defense’s motion for a jury


                                    - 11 -
instruction regarding the amount of drugs attributable to each

defendant.     Notably, review of the transcript reveals that counsel

for King stated that he had no objections to the jury instructions.

           We    find   that   even    if    King    had    lodged   an   objection

regarding, or had requested, a jury instruction either for a drug

quantity below 500 grams, or an instruction specifying a drug

quantity for each defendant, there was no abuse of the district

court’s discretion in denying such objection or request.                           See

United States v. Abbas, 74 F.3d at 513 (standard of review).                       The

superseding indictment clearly specified that the conspiracy count

against King involved distribution of an amount of cocaine of 500

grams or more.     The count, along with the quantity of 500 grams or

more, was reviewed with the jury by the district court in its jury

instructions. The jury found, beyond a reasonable doubt, that King

was guilty of conspiracy to distribute 500 grams or more of

cocaine.     As noted by the district court, the jury was free to

acquit   any    defendant   (including       King)    of    the   charge,    had    it

determined that that particular defendant had been involved in a

conspiracy     involving    less   than      500    grams    of   cocaine.         The

sentencing      court   properly      made     factual      findings      concerning

sentencing factors, including drug quantity, by a preponderance of

the evidence while applying the guidelines as advisory. See United

States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005) (Booker’s

remedy demonstrates that judicial fact finding by a preponderance


                                      - 12 -
of the evidence is unconstitutional only when it results in a

mandatory increase in the defendant’s sentence); United States v.

Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005) (same).   Accordingly, there was no error by the district

court with regard to drug quantity.

           King’s final claim is that his sentence is unreasonable,

and was imposed in violation of his Fifth and Sixth Amendment

rights.6   Specifically, King asserts that the advisory guideline

range of 292 to 365 months as calculated by the probation officer,

and considered by the district court, was based improperly on

findings by a preponderance of the evidence with regard to his

responsibility for distribution of more than fifteen kilos of

cocaine, his leadership role in the conspiracy, and his obstruction

of justice. He claims that the appropriate guideline range is that

based solely on the jury’s findings beyond a reasonable doubt, and

should have been sixty-three to seventy-eight months, excluding the

two-level enhancement for money laundering, of which the jury found

him guilty.




     6
      King also seeks to have this court hold his appeal in
abeyance for the Supreme Court’s then-pending decisions in Rita v.
United States, 127 S. Ct. 2456 (2007), and United States v.
Claiborne, 439 F.3d 479 (8th Cir.), cert. granted, 127 S. Ct. 551
(2006). The Court since has dismissed Claiborne as moot because of
Claiborne’s death, see Claiborne v. United States, 127 S. Ct. 2245
(U.S. Jun. 4, 2007), and has issued its decision in Rita. Thus, we
dismiss as moot King’s motion for abeyance.

                              - 13 -
            Post-Booker,7 we will affirm a sentence that is within

the statutorily prescribed range and is reasonable.                  United States

v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006). The Supreme Court recently upheld this presumption of

reasonableness.       Rita, 127 S. Ct. at 2462-67.              A sentence falling

outside the guidelines is not presumptively unreasonable. However,

if   the   sentence      was   based   on    an   error    in    interpreting     the

guidelines or if the court provided an inadequate statement of

reasons    or   relied    on   improper      factors,     the   sentence   will    be

unreasonable.      United States v. Green, 436 F.3d 449, 457 (4th

Cir.), cert. denied, 126 S. Ct. 2309 (2006).                    A sentence outside

the guidelines that is justified by reasons tied to § 3553(a)

generally will be reasonable.               The further the sentencing court

diverges from the guideline range, the more compelling the reasons

for the divergence must be.               Moreland, 437 F.3d at 434.               In

addition, Booker does not preclude sentencing courts from making

factual determinations.          In fact, district courts are authorized

and required to do so.          Id. at 2465-66 (noting that the Supreme

Court’s “Sixth Amendment cases do not automatically forbid a

sentencing court to take account of factual matters not determined

by a jury and to increase the sentence in consequence”); United

States v. Dalton, 477 F.3d 195, 197 (4th Cir. 2007).




      7
       United States v. Booker, 543 U.S. 220 (2005).

                                       - 14 -
             King’s 240-month sentence was well below his properly

calculated guidelines range.8         We find that the district court here

considered    all   the    appropriate     statutory   and   constitutionally

mandated   factors,       as   well   as   the   information   and   arguments

presented to it in the course of the sentencing hearing, and it

explained adequately its reasons for imposing a sentence below the

guidelines range in deciding King’s sentence.            The district court

fully complied with the mandates of Booker, and King’s resulting

sentence was reasonable and not in violation of his Sixth Amendment

rights.



     8
      The sentencing transcript reveals that the district court
considered the record, the evidence presented at trial at which the
judge presided, the presentence report, King’s objections to the
presentence report, King’s statements in support of leniency, and
the factors in § 3553(a).     The district court enunciated each
§ 3553(a) factor it considered prior to imposing sentence on King,
specifically referred to Booker at the sentencing hearing, and
properly applied the guidelines as advisory. In explaining its
reasons for sentencing King well below the advisory guidelines
range, the district court noted that although it had found that
King had threatened or intimidated a witness by a preponderance of
the evidence for purposes of determining the appropriate guideline
range, it declined to include the USSG § 3C1.1 two-level
enhancement for obstruction of justice in sentencing him, finding
that the crime is separate and distinct from the crimes of which
King was convicted and more appropriately evaluated by a jury in a
separate proceeding. In addition, the district court determined
that the 180-month, followed by the 60-month, sentence was not more
severe than necessary to satisfy the goals and purposes of federal
sentencing, and specifically mentioned King’s age and lack of any
prior criminal history (the district court noted that King’s
advisory range was substantially higher than that of his
codefendants because of the firearm and money laundering charges of
which he was convicted), stating that the goal of rehabilitation
could not be served if a defendant “can look forward to nothing
beyond imprisonment.”

                                      - 15 -
           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   We therefore deny as moot King’s motion for abeyance, and

affirm his conviction and sentence.      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 in 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 adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                           AFFIRMED




                              - 16 -
