                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4243



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DWAYNE FERGUSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CR-04-13)


Submitted:   February 22, 2006            Decided:   March 28, 2006


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gary R. Hershner, Richmond, Virginia, for Appellant.       Paul J.
McNulty, United States Attorney, Brian Lee Whisler, Olivia N.
Hawkins, Assistant United States Attorneys, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Dwayne Ferguson appeals his conviction and 765-month

prison sentence for conspiracy to distribute heroin and cocaine

base in violation of 21 U.S.C. § 846 (2000), possession with intent

to distribute heroin and cocaine base in violation of 21 U.S.C.

§   841(a)(1)   (2000),    maintaining    a     place   for   distribution    of

controlled substances in violation of 21 U.S.C. § 856 (2000), and

possession of a firearm in furtherance of a drug trafficking crime

in violation of 18 U.S.C. § 924(c) (2000).              Finding no reversible

error, we affirm.

           Ferguson first challenges the sufficiency of the evidence

for his conviction.       In reviewing a sufficiency challenge, “[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).

This court has defined “substantial evidence,” in the context of a

criminal action, as that evidence which “a reasonable finder of

fact   could    accept    as   adequate   and    sufficient    to   support   a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc).

           The Government presented sufficient evidence to prove

that Ferguson directed the distribution of large quantities of

cocaine and heroin.       The Government established that Ferguson was


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instrumental in obtaining and maintaining an apartment and a house

in order to store and distribute drugs.      Ferguson knew of the

firearms possessed by members of the conspiracy, including four

found by the police at the house.   The jury reasonably accepted as

sufficient the evidence to support Ferguson’s conviction, and we

have no authority to reweigh the evidence or disregard the jury’s

determination as to the credibility of the witnesses.

          Ferguson next claims that the district court abused its

discretion when it denied his motion for a mistrial.    The decision

whether to grant a motion for a mistrial is left to the broad

discretion of the trial court. United States v. Dorlouis, 107 F.3d

248, 257 (4th Cir. 1997).   During the Government’s questioning of

a police detective, the Government asked when the police began

focusing their investigation on Ferguson. While the district court

sustained Ferguson’s objection and instructed the jury to disregard

the question, the court denied Ferguson’s motion for a mistrial.

The district court did not abuse its discretion because Ferguson

failed to establish that the jury was prejudicially influenced by

the Government’s question. See United States v. Seeright, 978 F.2d

842, 849 (4th Cir. 1992).   Any prejudice suffered by Ferguson was

cured by the district court’s limiting instructions.     See United

States v. Francisco, 35 F.3d 116, 119 (4th Cir. 1994).

          Ferguson next claims that the district court abused its

discretion when it denied his motion for a continuance in order to


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secure the testimony of Shirley Elliott.          A district court’s

refusal to grant a continuance is reviewed for abuse of discretion.

Morris v. Slappy, 461 U.S. 1, 11-12 (1983).        Ferguson must show

that the testimony sought was relevant and that he exercised due

diligence.    United States v. Clinger, 681 F.3d 221, 223 (4th Cir.

1982).

            Roderick Parker lived at a halfway house before he joined

the drug conspiracy and testified that when Ferguson visited him he

did not check in or sign a visitor’s log.      Elliott allegedly would

have testified that the policy of the halfway house was to have

every visitor check in and sign the visitors log and Ferguson did

not.     The district court did not abuse its discretion because

Ferguson failed to establish that Elliott’s testimony was relevant.

Elliott’s testimony would have proven Ferguson’s name was not in

the visitor’s log, but could not prove that Ferguson did not visit

Parker.    Regardless, the issue of whether or not Ferguson visited

Parker was not worthy of a delay in the trial to secure Elliott’s

testimony,   especially   considering   that   Ferguson   had   time   to

subpoena Elliott before the end of the trial, but did not do so.

The district court did not err in denying Ferguson’s motion.

            Ferguson also claims he was denied a fair trial due to

comments made by the district court about witnesses and evidence.

A new trial is required only if the court’s conduct “whether in

commenting or in interrogating witnesses during trial reaches such


                                - 4 -
a level of prejudice that it denied any or all the appellants a

fair, as distinguished from a perfect, trial.”     United States v.

Parodi, 703 F.2d 768, 776 (4th Cir. 1983).     We have reviewed the

record and find no instances of improper comments by the district

court, much less any improper comments that were prejudicial.

          Ferguson also claims that the district court abused its

discretion when it allowed a Drug Enforcement Administration agent

to testify about the local drug trade.       See Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 152 (1999).    Distribution and prices of

drugs are not facts commonly known to a jury, and expert testimony

offered to help the jury understand the quantity and use of the

drugs is relevant to the charged offense.    This court has allowed

government agents and police officers to testify as drug experts in

numerous cases about the drug trade. See e.g., United States v.

Hopkins, 310 F.3d 145, 150-51 (4th Cir. 2002); United States v.

Brewer, 1 F.3d 1430, 1435-36 (4th Cir. 1993).      Thus, we find no

abuse of discretion.

          Ferguson next claims the district court erred when it

denied his motion for a new trial.      Pursuant to Rule 33 of the

Federal Rules of Criminal Procedure, a district court may grant a

defendant’s motion for a new trial “if the interest of justice so

requires.”   Fed. R. Crim. P. 33(a).   This court reviews the denial

of a Rule 33 motion for abuse of discretion.       United States v.

Adam, 70 F.3d 776, 779 (4th Cir. 1995).        Ferguson claims that


                               - 5 -
Elliott’s testimony at a post-trial motion hearing constituted new

evidence worthy of a new trial.     This evidence was not new evidence

as Ferguson was aware of it and sought to enter the evidence during

the trial but failed because he did not use due diligence to secure

Elliott’s testimony.      In addition, the evidence was not newly

discovered evidence because it was merely impeaching evidence. See

United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989).

Ferguson failed to establish any grounds for a new trial and the

district court did not abuse its discretion.

           Ferguson’s final challenge is to the reasonableness of

his   sentence.    He   initially    claims   that   his   sentence   was

unreasonable because it was twice the sentencing guideline range.

Because he failed to raise this claim below, we review it for plain

error.   United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

Ferguson does not claim the district court improperly calculated

his guideline range for his convictions.       Instead, his complaint

appears to rest on the fact that his sentence for the firearm

conviction ran consecutively to the drug conviction sentence.

Ferguson utterly ignores, however, that his firearm conviction

carries a minimum mandatory term of imprisonment of 360 months’

imprisonment that, by statute, may not run concurrently with any

other term of imprisonment, “including any term of imprisonment

imposed for the . . . drug trafficking crime during which the

firearm was possessed.”    18 U.S.C. § 924(c)(1)(B)(ii) and (D)(ii)


                                - 6 -
(2000).     We likewise reject as wholly unsupported by the record

Ferguson’s suggestion that the district court’s sentence may have

been tainted by impermissible racial considerations.     Accordingly,

as the district court’s sentence was both reasonable and within the

statutorily prescribed range, the court did not commit plain error.

            Accordingly,   we   affirm   Ferguson’s   conviction   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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