                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4312


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LAMONT DECORTEZ WHEELER,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-02343-RBH-1)


Submitted:   November 25, 2014            Decided:   December 4, 2014


Before NIEMEYER, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


G. Wells Dickson, Jr., WELLS DICKSON, P.A., Kingstree, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lamont    Decortez     Wheeler    appeals        his    convictions     and

the   300-month      aggregate     downward       variance         sentence     imposed

following his jury trial on multiple charges arising out of a

drug trafficking conspiracy.              Wheeler’s counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

there are no meritorious grounds for appeal, but questioning

Wheeler’s competency to stand trial, the court’s failure to give

a cautionary Fed. R. Evid. 404(b) instruction when admitting

evidence of Wheeler’s prior state convictions, the sufficiency

of the evidence, and the reasonableness of Wheeler’s sentence.

We affirm.

            Wheeler    first     questions    the      district      court’s     ruling

that he was competent to stand trial.                   We   review       a    district

court’s     competency    determination          for    clear      error.        United

States v.    Robinson,    404     F.3d    850,    856    (4th      Cir.   2005).      A

defendant shall be considered incompetent if the district court

finds “by a preponderance of the evidence that the defendant is

presently suffering from a mental disease or defect rendering

him mentally incompetent to the extent that he is unable to

understand     the    nature     and     consequences        of     the   proceedings

against him or to assist properly in his defense.”                            18 U.S.C.

§ 4241(d) (2012).        The defendant bears the burden of proving by

a preponderance of the evidence that he is incompetent.                              18

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U.S.C. § 4241(d); Cooper v. Oklahoma, 517 U.S. 348, 362 (1996);

Robinson, 404 F.3d at 856.

              “Medical opinions are usually persuasive evidence on

the question of whether a sufficient doubt exists as to the

defendant’s competence.”                   United States v. General, 278 F.3d

389, 398 (4th Cir. 2002) (internal quotation marks omitted).

Here,    a    forensic       psychologist          conducted         two     evaluations      of

Wheeler, each spanning several weeks.                      Both times, she concluded

that he was competent to stand trial, finding that, despite past

mental    health      issues,       Wheeler     did      not    have    an    active     mental

illness that would affect his competency, he demonstrated an

understanding       of   the        charges     against        him     and    the     courtroom

proceedings,       and       he     could     assist      counsel       in     his    defense.

Although       defense            counsel’s        law     partner           reported        that

communication         with    Wheeler       had     been       difficult       and,     on    one

occasion, Wheeler exhibited bizarre, irrational behavior, this

testimony was merely anecdotal and not sufficient to override

the     psychologist’s        professional          opinion.           We     conclude       that

Wheeler failed to meet his burden and that the district court

did not clearly err in concluding that he was competent to stand

trial.

              Next,    Wheeler        questions       whether        the     district    court

abused       its   discretion         by    declining          to    give     a      cautionary

instruction pursuant to Fed. R. Evid. 404(b) when the Government

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introduced evidence of his March 2008 felony drug convictions.

This Court reviews a district court’s evidentiary rulings for

abuse of discretion.            United States v. Taylor, 754 F.3d 217, 226

n.* (4th Cir.), petition for cert. filed, ___ S. Ct. ___ (Sept.

4, 2014) (No. 14-6166).

             Rule    404(b)      prohibits        the       admission       of    evidence     of

other   wrongs      or    bad   acts     solely        to    prove     a   defendant’s        bad

character, but the Rule 404(b) inquiry applies only to evidence

of acts extrinsic to the ones charged.                         Intrinsic acts are not

limited by Rule 404(b).              United States v. Otuya, 720 F.3d 183,

188   (4th   Cir.    2013),      cert.     denied,          134   S.     Ct.     1279   (2014).

Evidence is intrinsic if it is “inextricably intertwined” with

evidence of the charged offenses and forms an integral part of

the   testimony      concerning          those    offenses.              United    States      v.

Lighty, 616 F.3d 321, 352 (4th Cir. 2010).

             The    evidence        of    Wheeler’s          March     2008      felony      drug

convictions was properly introduced as intrinsic to the charged

offenses.     The underlying offenses occurred in December 2006 and

November     2007,       in   the    middle       of    the       time     charged      in    the

conspiracy and occurred at the same location as the majority of

the transactions charged in the indictment.                                Furthermore, the

convictions involved crack, one of the substances charged in the

indictment.         Because     evidence         of    Wheeler’s         2008    felony      drug

convictions was clearly intertwined with the charged offenses,

                                              4
we conclude that it concerned acts that were intrinsic to the

charged offenses.              Accordingly, no cautionary instruction was

necessary.

               Next,    Wheeler       questions          whether       the     evidence      was

sufficient to support each of his convictions.                              This court must

uphold a jury verdict if there is substantial evidence, viewed

in the light most favorable to the Government, to support it.

Burks v. United States, 437 U.S. 1, 17 (1978); United States v.

Smith, 451 F.3d 209, 216 (4th Cir. 2006).                                  In reviewing the

sufficiency      of     the     evidence,      we       accord    the       Government      “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),      and        do    not   weigh     the

credibility      of     the    evidence       or   resolve       any       conflicts   in    the

evidence.       United States v. Beidler, 110 F.3d 1064, 1067 (4th

Cir. 1997).       “Reversal for insufficient evidence is reserved for

the rare case where the prosecution’s failure is clear.”                                    Id.

(internal quotation marks omitted).

               The jury found Wheeler guilty on Count One, conspiracy

to possess with intent to distribute and to distribute cocaine

and crack, in violation of 21 U.S.C. § 846 (2012), specifically

finding him accountable for less than 500 grams of cocaine and

280    grams    or     more    of    crack.        To    prove     the      conspiracy,      the

Government       had    to     establish       that      (1)     an    agreement       existed

                                               5
between two or more individuals to distribute and possess with

intent to distribute cocaine and crack; (2) Wheeler knew about

the conspiracy; and (3) he “knowingly and voluntarily became a

part of this conspiracy.”                     United States v. Hackley, 662 F.3d

671, 678 (4th Cir. 2011) (internal quotation marks omitted).

The Government also had to prove beyond a reasonable doubt that

the    conspiracy          involved      at   least    280    grams    of       cocaine.      21

U.S.C. § 841(b)(1)(A) (providing enhanced statutory sentencing

range for 280 grams or more of crack); see United States v.

Brooks,       524    F.3d       549,   557    (4th    Cir.    2008)    (recognizing          that

after Apprendi v. New Jersey, 530 U.S. 466 (2000), “specific

threshold       drug       quantities         must    be     treated       as    elements      of

aggravated          drug    trafficking         offenses,         rather    than      as     mere

sentencing          factors”      (internal      quotation        marks     omitted));       see

also Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013)

(extending Apprendi to statutory minimum sentences).

               The     evidence         presented      at     trial    established           that

Wheeler engaged in the trafficking of crack and cocaine at his

trailer from as early as 2000 until Wheeler’s arrest in 2011.

In    particular,          on     numerous     occasions,         Darren        Monroe     cooked

cocaine into crack for Wheeler, which Wheeler then sold.                                       In

addition to the other evidence of the quantities of crack and

cocaine Wheeler bought and sold, Monroe estimated that he cooked

a     total    of     one       to     two    kilograms      of     crack       for      Wheeler.

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Furthermore,       a    search   of     Wheeler’s    trailer     in    December   2009

revealed ample evidence of drug trafficking, including two sets

of scales, baggies containing crack and powder cocaine, and a

loaded pistol.         Also, more than $2000 in cash was recovered from

Wheeler’s person.            United States v. Carrasco, 257 F.3d 1045,

1048 (9th Cir. 2001) (stating that scales are known tools of

drug trade); United States v. Ward, 171 F.3d 188, 195 (4th Cir.

1999) (noting that Rolex watch, a wad of currency in the amount

of $1055, and a handgun were all indicia of drug dealing).                             We

conclude    that       the   evidence    was    sufficient     to     prove   beyond    a

reasonable doubt the conspiracy charged in Count One.

            To sustain Wheeler’s convictions for possession with

intent     to   distribute        crack,        in   violation        of   21   U.S.C.

§ 841(a)(1) (2012) (Counts Two, Four, and Eight), the Government

had to show that, on August 19, 2009, December 10, 2009, and

August 29, 2011, Wheeler: (1) possessed crack, (2) that he did

so knowingly, and (3) that he intended to distribute it.                        United

States v. Penniegraft, 641 F.3d 566, 572 (4th Cir. 2011).                          The

evidence presented at trial showed that a cooperating witness,

Larry Lane, made a controlled buy of 0.15 grams of crack from

Wheeler at his trailer in Latta, South Carolina, on August 21,

2009, and another cooperating witness, Margaret Goss, made a

controlled buy of 0.3 grams of crack from Wheeler at his trailer

in Latta, South Carolina, on August 29, 2011.                       On December 10,

                                            7
2009, Wheeler was arrested with over $2000 on his person and, as

previously stated, two sets of scales, baggies containing crack

and   cocaine,        a    loaded        firearm,      and     other    indicia          of    drug

trafficking were recovered from his trailer.                            This evidence was

sufficient       to       support        Wheeler’s       convictions         on     the       three

substantive § 841 counts.

            Counts Five and Six respectively charged Wheeler with

violating 18 U.S.C. §§ 922(g)(1) and 924(c) (2012) on or about

December    10,       2009.       To      establish      a     violation      of    18        U.S.C.

§ 922(g)(1), the Government had to show that: (1) Wheeler was a

convicted       felon;      (2)     he    knowingly       possessed      a    firearm;           and

(3) the     firearm         traveled        in       interstate       commerce.           United

States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).                                          To

sustain    the    § 924(c)(1)(A)            conviction,         the    Government         had     to

establish two elements: (1) Wheeler used or carried a firearm

and (2) “did so during and in relation to a drug trafficking

crime.”      United States v. Strayhorn, 743 F.3d 917, 925 (4th

Cir.), cert. denied, 134 S. Ct. 2689 (2014).

            Wheeler         stipulated           that     he     had     previously             been

convicted of a felony.                 The evidence presented at trial showed

that, on December 10, 2009, law enforcement recovered from a

bedroom    in    Wheeler’s        trailer        a    pistol    that    was       next    to     his

driver’s license and established an interstate nexus for the

pistol.      As    previously            stated,      substantial       evidence         of     drug

                                                 8
trafficking      was   recovered      from    his    trailer       on   this    date.

Furthermore, witnesses testified that they saw guns at Wheeler’s

residence where he engaged in drug trafficking.                         We conclude

that the evidence was sufficient to support Wheeler’s firearms

convictions.

            Finally, Wheeler challenges the reasonableness of his

downward     variance      sentence.          We    review     a    sentence      for

reasonableness,        applying    “a     deferential        abuse-of-discretion

standard.”       Gall v. United States, 552 U.S. 38, 41 (2007).                     A

sentence “within or below a properly calculated Guidelines range

is    presumptively      reasonable     [on   appeal].”       United     States    v.

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.

295    (2014).     The    defendant     bears      the   burden    to   rebut    this

presumption “by showing that the sentence is unreasonable when

measured against the . . . § 3553(a) factors.”                    Id.   We conclude

that Wheeler failed to rebut the presumption of reasonableness

afforded his below-Guidelines sentence.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious grounds for

appeal.    We therefore affirm Wheeler’s convictions and sentence.

This court requires that counsel inform Wheeler, in writing, of

the right to petition the Supreme Court of the United States for

further review.        If Wheeler requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

                                         9
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 Wheeler.        We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before    this   court   and   argument   would   not   aid   the

decisional process.



                                                                    AFFIRMED




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