                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4927



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


WILLIAM STEVEN HURLEY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-42)


Submitted:   March 21, 2006                 Decided:   April 11, 2006


Before WILLIAMS, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert J. McAfee, New Bern, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Clifton T. Barrett,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        William Hurley appeals his conviction and 288-month sentence

following a jury trial on a charge of possession with the intent to

distribute       in   excess      of     fifty    grams    of   methamphetamine,       in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).                       We find no

error and affirm Hurley’s conviction and sentence.



                                             I.

       On October 10, 2003, Detective Renee Melly of the Winston-

Salem Police Department was conducting drug interdiction with her

K-9 at a Federal Express (“FedEx”) processing facility.                             After

watching numerous packages pass along the conveyer belt, Detective

Melly    observed      a    package       that    she     suspected     might     contain

narcotics.       Subsequently, Detective Melly removed the package from

the belt and placed it next to three similar looking parcels, at

which point, her K-9 alerted on the suspicious package.

       The package’s label indicated that the intended recipient was

“Brian        Painland”     at     the    address       “9510    R.J.    Moore      Road,

Tobaccoville, North Carolina, 27050.”                     The label also identified

the sender of the package as “Miguel Espinoza, Boulevard Postal

Stop     N’     Services,        15030    Ventura       Boulevard,      Sherman    Oaks,

California, 91403.”         J.A. 44-47.          Shortly after the K-9 alerted on

the package, Detective Melly applied for and received a search

warrant.        Pursuant to the search warrant, officers opened the


                                             2
package and discovered two heat sealed fish oil supplement bottles.

Subsequent     field   testing   revealed   that    the   bottles   actually

contained 439 grams of methamphetamine.

     After placing the bottles back into the package and resealing

it, the officers undertook a controlled delivery, whereby Detective

Melly, disguised as a FedEx employee, traveled to 9510 R.J. Moore

Road in an unmarked van.          When Detective Melly’s knocks went

unanswered, she left the package on the front porch and joined

several other officers in a stake-out of the house.           Several hours

later,   the   officers   observed   a   Nissan    X-Terra   pull   into   the

driveway of the house where they had delivered the package.                  A

white male, later identified by the officers as defendant Hurley,

exited the vehicle, walked up to the porch, retrieved the package,

returned to his vehicle, and drove away.

     After following the defendant for a short time, a marked

patrol unit stopped the defendant’s vehicle and arrested him.

During a search of the vehicle incident to the arrest, detectives

seized, among other things, the following items from the vehicle:

(1) the package containing 439 grams of methamphetamine; (2)

electronic scales; (3) a lighter and a butane torch; (4) two cell

phones; (5) a 150-foot roll of aluminum foil; (6) two sets of

binoculars; (7) a spiral-bound notebook containing the same contact

telephone number for Brian Painland as the FedEx label and the name

“Johnny Blikian.”


                                     3
     Before trial, Hurley moved to suppress the evidence of the

package containing methamphetamine.          The Government opposed the

motion on the grounds that Hurley did not have standing to contest

the propriety of the search.       At the suppression hearing, Hurley

testified that he had provided the alias Brian Painland and the

address 9510 R.J. Moore Road to the individual who had shipped the

methamphetamine from California.           Hurley indicated that he had

never used this alias before.       Further, Hurley testified that he

had called to the FedEx office the day before his arrest to inquire

about the package’s delivery status.1          During this call, Hurley

identified himself as Brian Painland and made arrangements for

FedEx to re-attempt delivery at 9510 R.J. Moore Road the next day.

Hurley admitted that he did not go to the FedEx processing center

to retrieve the package that day because he did not have any

identification   in   the   name   Brian    Painland.   Further,   Hurley

admitted that the contact number listed in the spiral notebook and

on the package for Brian Painland was actually a contact number for

his associate, Johnny Blikian, and not for Hurley himself.

     Although Hurley initially testified that 9510 R.J. Moore Road

was a friend’s rental property and that he had received the owner’s

permission to receive mail there, he later admitted that his friend

did not live at the rental property and that he did not know the


     1
      Apparently, FedEx had previously attempted a delivery but was
unable to find the address because there was no number on the
house.

                                     4
person (or persons) who did.      The district court denied the motion

to suppress concluding that to the extent that Brian Painland was

a “one-time alias” of the defendant, and that the package was

delivered   to    an   address   with      which   the   defendant    had    no

association, Hurley did not have a legitimate expectation of

privacy in the package or its contents.

     At sentencing, the district court determined that Hurley’s

nine prior armed robbery convictions, which were imposed in four

prior sentences, qualified Hurley for career offender status under

U.S. Sentencing Guidelines Manual § 4B1.1 (2004). Accordingly, the

district court assigned Hurley a Criminal History Category VI.

Combining Hurley’s criminal history with a Total Offense Level of

34, the court calculated Hurley’s guideline range to be 262 to 327

months.     The   district   court   sentenced      Hurley   to   a   term   of

imprisonment of 288 months.



                                     II.

                                     A.

     Hurley first contends that the district court erred in denying

his motion to suppress the contents of the package on the basis

that he lacked standing to challenge the search.2             We review the


     2
      Although the defendant initially asserted in his opening
brief that he had not been provided with a copy of the transcript
of the suppression hearing, Hurley notes in his reply brief that
the Government subsequently provided him with a copy of the
transcript and that it is part of the record of the proceedings

                                     5
district court’s legal conclusions underlying its denial of a

motion to suppress de novo and review factual findings for clear

error.   United States v. Johnson, 400 F.3d 187, 193 (4th Cir.),

cert. denied, 126 S. Ct. 134 (2005).    The evidence is construed in

the light most favorable to the party prevailing below.       United

States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

     Both the sender and the designated recipient of a package sent

by mail or other carrier have a legitimate expectation of privacy

in the contents of that package.      See United States v. Jacobsen,

466 U.S. 109, 114 (1984).   Thus, Hurley has standing to contest the

validity of the search only if he can demonstrate that he was the

designated recipient of the package.    This he cannot do.   Although

Hurley testified that he had instructed the sender to ship the

package to an addressee named Brian Painland, he admitted that he

had personally never used this alias before.         Indeed, Hurley

testified that he did not pick up the package from the FedEx

facility because he did not have any identification in the name

Brian Painland.     Hurley further testified that the telephone

contact number for Brian Painland listed in his notebook and on the

FedEx label was a contact number for his associate, Johnny Blikian,

and not for him.   Finally, Hurley testified that he did not reside

at the address to which he had the package delivered, nor did he

know the person (or persons) who did.      Accordingly, the district


below.

                                  6
court correctly rejected Hurley’s claim that he had a legitimate

expectation of privacy in the package or its contents and thus

appropriately denied his motion to suppress for lack of standing.



                                      B.

     Hurley next contends that the evidence was insufficient to

support his conviction for violating 21 U.S.C. § 841(a)(1).                In

reviewing a sufficiency challenge, “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 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.” United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996) (en banc).

     In evaluating the sufficiency of the evidence, we do not

“weigh the evidence or review the credibility of the witnesses.”

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).           Where

the evidence supports differing reasonable interpretations, the

jury decides which interpretation to believe.         Id.      Furthermore,

“the Supreme Court has admonished that we not examine evidence in

a piecemeal fashion, but consider it in cumulative context.”

Burgos,   94   F.3d   at   863   (citations   omitted).     “The   focus   of

appellate review, therefore, . . . is on the complete picture,


                                      7
viewed    in     context     and    in       the    light   most     favorable       to    the

Government, that all of the evidence portrayed.”                          Id.

     To     prove     possession             with     the     intent       to     distribute

methamphetamine,       the     Government           must    establish       that    (1)    the

defendant        possessed     methamphetamine;             (2)    the     defendant       had

knowledge of his possession; and (3) the defendant intended to

distribute the methamphetamine.                    See id. at 873.        A jury can infer

an intent to distribute from the defendant’s possession of a large

quantity of drugs and drug-packaging paraphernalia.                         United States

v. Collins, 412 F.3d 515, 519 (4th Cir. 2005).                                  Although the

defendant contends that the evidence was insufficient to support

elements two and three (knowledge and intent), this argument is

unavailing.        The evidence presented at trial, particularly the

suspicious       circumstances          by    which     the       defendant       came    into

possession of the package, the large quantity of methamphetamine in

the package, and the drug paraphernalia in the defendant’s car,

would allow a reasonable jury to infer both knowledge and intent

and thus convict Hurley of possession of methamphetamine with the

intent to distribute.          In sum, after reviewing the evidence in the

light     most     favorable       to    the       Government,       we    conclude       that

substantial evidence supports the conviction.




                                               8
                                       C.

        Next, Hurley contends that the district court erred in its

application of U.S. Sentencing Guidelines Manual § 4B1.1, the

career offender enhancement.           In 1980, Hurley was convicted of

committing nine separate armed robberies. The sole issue before us

in connection with Hurley’s career offender status is whether the

district court erred in finding that the robberies were separate

offenses for sentencing purposes, and not part of a common plan or

scheme.      See U.S.S.G. § 4A1.2, cmt.

        In   reviewing   the   district      court’s   application   of   the

Guidelines, we accept the findings of fact of the district court

unless they are clearly erroneous and give due deference to the

court’s application of the Guidelines to the facts.           United States

v. Cutler, 36 F.3d 406, 407 (4th Cir. 1994).           The defendant has the

burden of proving the existence of a common scheme.           United States

v. Joy, 192 F.3d 761, 771 (7th Cir. 1999); United States v. Cowart,

90 F.3d 154, 159 (6th Cir. 1996).           The relevant factors in deciding

whether offenses are part of a single common scheme or plan are

whether the crimes: (1) were committed within a short period of

time;    (2)   were   committed   in   close    geographic   proximity;   (3)

involved the same substantive offense; (4) were directed at a

common victim; (5) were solved during the course of a single

criminal investigation; (6) shared a similar modus operandi; (7)

were animated by the same motive; and (8) were tried and sentenced


                                       9
separately only because of an accident of geography. United States

v. Breckenridge, 93 F.3d 132, 138 (4th Cir. 1996) (citations

omitted).     Not all of these factors must be present for there to be

a common scheme or plan, nor does the presence of a few of them

require that finding.         Id.

     Although two of the above factors weigh in the defendant’s

favor--the nine armed robberies constituted the same substantive

offense and shared a similar modus operandi--the remaining six

factors cut against his argument that they constituted a common

scheme of plan.       Indeed, the record indicates that Hurley robbed

several unrelated victims in multiple counties over a protracted

82-day period.     Further, the robberies were not solved by a single

investigation     and   the    offenses       were   not    tried    and    sentenced

separately only because of an accident of geography.                   Accordingly,

we conclude that the district court did not err in rejecting the

defendant’s argument that the armed robberies were part of a common

scheme   or    plan     and    thereby    applying         the     career   offender

enhancement.



                                         D.

     Finally,     the   defendant    contends        that    the    district   court

committed plain error by failing to consider the Guidelines as

advisory, rather than mandatory.              While the mandatory application

of the Guidelines constitutes plain error, United States v. White,


                                         10
405 F.3d 208, 217 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005),

a defendant who seeks resentencing on this ground must show actual

prejudice, i.e., a “nonspeculative basis for concluding that the

treatment of the Guidelines as mandatory ‘affected the district

court's selection of the sentence imposed.’”         Id. at 223 (quoting

Williams v. United States, 503 U.S. 193, 203 (1992)).            The record

is devoid of any evidence that the district court desired to

sentence Hurley below the applicable Guidelines range.                 To the

contrary, the district court indicated that a sentence in the

middle of the range was appropriate, given the nature of the

offense and the need to protect the public.         Indeed, the district

court declined to exercise its discretion under the mandatory

Guidelines   regime   to   impose   sentence   at   the   low   end    of   the

Guidelines range. Thus, since Hurley cannot show that the district

court would have imposed a lesser sentence under an advisory

Guidelines regime, he has failed to establish plain error.



                                    III.

     For the foregoing reasons, we affirm Hurley’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 in the decisional process.



                                                                      AFFIRMED


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