                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4313



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MARK LOWERY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00252)


Submitted:   June 20, 2007                 Decided:   August 21, 2007


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kimberly Y. Best, THE BEST LAW FIRM, P.L.L.C., Charlotte, North
Carolina, for Appellant.   Gretchen C.F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Mark Lowery was convicted of possession with intent to

distribute marijuana and aiding and abetting the same, in violation

of 21 U.S.C. § 841 (2000).      He was sentenced to twenty-seven months

in prison.     Lowery now appeals, raising two issues.           We affirm.

                                       I

           Lowery first claims that the evidence was insufficient to

convict him.     “The 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).     “Substantial    evidence     is    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. Cardwell, 433 F.3d 378, 390 (4th Cir.

2005) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc)), cert. denied, 126 S. Ct. 1669 (2006).               We review

both   direct     and   circumstantial        evidence     and   permit      the

“[G]overnment the benefit of all reasonable inferences from the

facts proven to those sought to be established.”            United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).              We do not review

the credibility of witnesses, and we assume the jury resolved all

contradictions in the Government’s favor.            United States v. Sun,

278 F.3d 302, 313 (4th Cir. 2002).




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          To    establish   a    violation   of   21   U.S.C.   §   841,   the

Government must prove beyond a reasonable doubt that the defendant:

(1) knowingly; (2) possessed the controlled substance; (3) with the

intent to distribute it.        United States v. Burgos, 94 F.3d at 873.

Possession may be actual or constructive. United States v. Rusher,

966 F.2d 868, 878 (4th Cir. 1992).           “A person has constructive

possession of a narcotic if he knows of its presence and has the

power to exercise dominion and control over it.”           United States v.

Schocket, 753 F.2d 336, 340 (4th Cir. 1985).           Intent to distribute

may be inferred if the amount of drugs found in the defendant’s

possession exceeds an amount normally associated with personal

consumption.    United States v. Wright, 991 F.2d 1182, 1187 (4th

Cir. 1993).    “To prove aiding and abetting the crime of possession

of drugs with intent to distribute the government must connect [the

defendant] with . . . possession and intent to distribute.” United

States v. Kelly, 888 F.2d 732, 742 (11th Cir. 1989).

          Viewed in the light most favorable to the Government, the

evidence at trial established that Philip Ductan agreed to sell

twenty pounds of marijuana to Mandrel Dunn for $12,000 and to

deliver the drug to Dunn at a Charlotte restaurant. Unbeknownst to

Ductan, Dunn was a police informant.         Ductan, Landis Richardson,

and Lowery traveled to Charlotte in two vehicles: a blue Ford

Expedition and a Chevy Tahoe registered to Lowery.                  Prior to

Ductan’s, Richardson’s and Lowery’s arrival at the restaurant,


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officers saw the cars stopped at a light.                   Occupants of the

Expedition appeared to converse with Lowery, who was driving the

Tahoe.

             Lowery, Richardson, and Ductan arrived at the restaurant

in the Expedition. Dunn and an undercover police officer met them.

After greeting Ductan, Dunn and the officer visited the restroom.

The officer noticed that a man followed them into the restroom and

followed them out.       The officer surmised that the man (Lowery) was

surveilling them.        Once Lowery and the officer were back outside,

Ductan told them that the marijuana was in his truck.                The men

walked to the Expedition.        Richardson and Lowery sat in the front

seat.    Ductan got into the right seat of the second row, and Dunn

sat next to him.         Ductan showed Dunn and the officer, who was

standing outside the truck, about a pound of marijuana that was

concealed in the truck’s back row of seats.          Dunn exited the truck,

telling Lowery and the others that he had to go get the money.              At

that point, the officer gave a “take-down” signal, alerting other

officers who were standing by that they should approach and arrest

the truck’s occupants.

             During the search incident to Lowery’s arrest, officers

recovered a set of car keys that operated the Tahoe, which was

parked at a nearby motel.       Inside the Tahoe, they detected a strong

odor    of   marijuana    and   found    Lowery’s   birth   certificate,   the

vehicle’s registration showing that the Tahoe was registered in


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Lowery’s   name,      a   gun,   and   approximately    eighteen     pounds   of

marijuana.

             This evidence was sufficient to convict Lowery of the

offense.       Officers      found     eighteen     pounds    of   marijuana—a

distribution quantity and the bulk of the expected delivery to

Dunn—inside Lowery’s vehicle.            Furthermore, Lowery accompanied

Ductan and Richardson to the site of the expected transaction,

apparently surveilled Dunn and the undercover officer when they

went to the restroom,        and watched them as Ductan showed them the

marijuana in the Expedition.1

                                        II

             Lowery   also   challenges      his   sentence   of   twenty-seven

months. He contends that sentencing enhancements for possession of

a firearm and obstruction of justice violate the Sixth Amendment

because the facts supporting those enhancements were determined by

the district court based on a preponderance of the evidence.

             We review a sentence imposed after United States v.

Booker, 543 U.S. 220 (2005), to determine whether the sentence is

“within the statutorily prescribed range and reasonable.”               United




     1
      In a somewhat related argument, Lowery contends that his
conviction is inconsistent with his acquittal of conspiracy to
distribute marijuana. A defendant cannot challenge a conviction
simply because it may be inconsistent with a verdict of acquittal
on another count. United States v. Powell, 469 U.S. 57, 66 (1984);
United States v. Thomas, 900 F.2d 37, 40 (4th Cir. 1990).

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States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).2                              “[A]

sentence       within      the      proper     advisory     guideline         range    is

presumptively reasonable.” United States v. Johnson, 445 F.3d 339,

341 (4th Cir. 2006) (citations omitted).3                 After Booker, as before,

such       sentencing     factors    are   determined     by   judges     based   on    a

preponderance of the evidence.                See United States v. Morris, 429

F.3d 65, 72 (4th Cir. 2005).                  Elements of the offense must be

admitted       by   the   defendant     or    determined    by   a     jury   beyond    a

reasonable doubt; however, sentencing factors are decided by the

judge based on the lower standard of proof.                      Id.     We therefore

reject Lowery’s claim that the district court’s determination of

sentencing factors violated the Sixth Amendment.

               Here, Lowery was sentenced within the statutory maximum

and within the properly calculated guideline range of twenty-seven

to thirty-five months.               Further, the district court took into

account the § 3553(a) factors when imposing sentence.                     We conclude

that his sentence was reasonable.

                                             III

               We accordingly affirm.              We dispense with oral argument

because the facts and legal contentions are adequately presented in


       2
      Lowery does not contend that his sentence was outside the
statutorily prescribed range.
       3
      Similarly, Owens does not attack the calculation of the
advisory guideline range. Nor would such an attack be successful,
as our review of the record establishes that the range was
correctly calculated.

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the materials before the court and argument would not aid the

decisional process.

                                                     AFFIRMED




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