                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4318



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


LYNN RAY DAVIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00249-JAB)


Submitted:   April 30, 2008                   Decided:   May 19, 2008


Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Kyle Smith, LAW OFFICE OF J. KYLE SMITH, PLLC, Newton, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Lynn Ray Davis appeals his jury conviction for conspiracy

to distribute cocaine base, two counts of distributing cocaine

hydrochloride, possession with intent to distribute cocaine base

and cocaine hydrochloride, and possession with intent to distribute

cocaine base, in violation of 21 U.S.C. §§ 841, 846 (2000).   Davis

contends that the district court erred in admitting evidence; the

evidence was insufficient for the jury to find him guilty of count

three; the district court plainly erred in instructing the jury on

count three; and the district court plainly erred in violation of

his rights under the Confrontation Clause in allowing testimony by

an expert in the field of forensic chemistry regarding the testing

performed by another chemist.   We affirm.

          Davis first contends the district court erred under Fed.

R. Evid. 403 by allowing into evidence a videotape of alleged drug

sales by Davis, because the admission was more prejudicial than it

was probative of his conspiracy to distribute cocaine base. “Under

Federal Rule of Evidence 403, relevant evidence ‘may be excluded if

its probative value is substantially outweighed by the danger of

unfair prejudice.’” United States v. Myers, 280 F.3d 407, 413 (4th

Cir. 2002) (quoting Fed. R. Evid. 403).      “Because the evidence

sought to be excluded under Rule 403 is concededly probative, the

balance under Rule 403 should be struck in favor of admissibility,

and evidence should be excluded only sparingly.”     United States


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v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996).                  Thus, we have

“interpreted Rule 403 to require the exclusion of evidence ‘only in

those instances where the trial judge believes that there is a

genuine risk that the emotions of the jury will be excited to

irrational behavior, and that this risk is disproportionate to the

probative value of the offered evidence.’”            United States v. Van

Metre, 150 F.3d 339, 350 (4th Cir. 1998) (quoting United States

v. Powers, 59 F.3d 1460, 1467 (4th Cir. 1995)).

            We review the district court’s “application of this

balancing    test   with   the   broad    deference      that    the   abuse   of

discretion standard requires.”           Myers, 280 F.3d at 413 (citation

omitted).     Abuse of discretion “occurs only when it can be said

that the trial court acted arbitrarily or irrationally in admitting

evidence.”    United States v. Williams, 445 F.3d 724, 732 (4th Cir.

2006) (internal quotation marks and citation omitted).                 Where the

district court gives a limiting instruction on the use of evidence,

the fear that the jury may improperly use the evidence subsides.

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).

            We   have   reviewed   the    record   and    find    no   abuse   of

discretion.      The videotape evidence of Davis engaged in what

appeared to be street-level drug distribution was relevant to the

conspiracy charge, and it corroborated testimony given by other

Government witnesses regarding Davis’s conspiracy to distribute

cocaine base.       Davis argues that the probative value of the


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videotape was outweighed by its prejudice because it “instilled an

impression that the items sold [by Davis] were cocaine base,” even

though the officer making the videotape was not close enough to

identify the drugs.    However, the videotape merely illustrated the

officer’s testimony describing the same events, and Davis did not

object to the testimony.      Moreover, in response to Davis’s concern

that the tape did not relate to any of the substantive distribution

counts, the district court gave a limiting instruction that the

evidence should be considered only for the purpose of showing

Davis’s knowledge of and involvement in a drug conspiracy.

           Davis next contends that the district court erred in

denying his motion to dismiss as to count three, because the

evidence was insufficient to support the charge, and the district

court plainly erred in its jury instructions.           We must sustain a

jury’s verdict 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 which

a reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of guilt beyond a reasonable doubt. United

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

do not review credibility of witnesses or decide between differing

reasonable interpretations of the evidence.             United States v.

Wilson,   118   F.3d   228,   234   (4th    Cir.   1997).   Reversal   for

insufficient evidence is reserved for the rare case in which the


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prosecution’s failure is clear. United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997).

          Count three charged Davis with possessing with intent to

distribute    14.1   grams   of    a   mixture   and    substance     containing

detectable amounts of cocaine base and cocaine hydrochloride in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2000). The district

court instructed the jury that when determining whether any drug

quantity fell within certain ranges, they should consider the total

weight of the mixture or substance containing a detectable amount

of the drug charged.        Although Davis conceded that the substance

and mixture which was the subject of count three contained cocaine

base, he argued that it did not contain 14.1 grams of cocaine base,

and the jury would be unable to determine whether it did so.

          On appeal, Davis contends the evidence was insufficient

to show the individual weights of the cocaine base and cocaine

hydrochloride, and it was therefore impossible for the jury to

conclude that the weight of the cocaine base was greater than five

grams under 21 U.S.C. § 841(b)(1)(B).               He further contends the

district court plainly erred in failing to give a special jury

instruction   that   they    should     determine      the   actual   individual

weights of the two drugs.         We find these arguments without merit.

The district court properly concluded that the entire mixture or

substance is weighed when calculating the sentence.              See 21 U.S.C.

§ 841(b)(1)(B) (2000); Chapman v. United States, 500 U.S. 453, 459


                                       - 5 -
(1991).      Thus, the district court erred neither in denying Davis’s

motion to dismiss nor in instructing the jury.

              Finally, Davis contends that the district court plainly

erred   in    violation   of   his   Sixth   Amendment   right   to   confront

witnesses under Crawford v. Washington, 541 U.S. 36 (2004), when

the district court allowed expert testimony by a chemist regarding

testing performed by another chemist in identifying the drugs

involved in count three.       Because Davis did not raise the issue in

the district court, our review is for plain error.                See United

States v. Olano, 507 U.S. 725, 731-32 (1993).

              We recently concluded that data generated by lab machines

from the testing of a blood sample taken by a lab technician was

not a testimonial statement for Confrontation Clause purposes.

United States v. Washington, 498 F.3d 225, 229 (4th Cir. 2007),

pet. for cert. filed, __ U.S.L.W. __ (Dec. 14, 2007) (No. 07-8291).

Even if Davis could show error in allowing the chemist’s testimony

in this case, we conclude he has not shown plain error affecting

his substantial rights. On appeal, he contends that the individual

weight of the two drugs contained in the count three mixture was a

critical issue, and he should have had an opportunity to cross-

examine the chemist who tested the sample regarding any conclusions

drawn from the sample. However, the individual weight of the drugs

was not a critical issue affecting his substantial rights. Because




                                     - 6 -
Davis does not dispute the total weight of the sample or the fact

that it contained cocaine base, he has shown no prejudice.

          Accordingly, we 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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