                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4368


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL ANTHONY DARBY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.    Margaret B. Seymour, District
Judge. (5:07-cr-01253-MBS-1)


Argued:   September 21, 2011                 Decided:   November 29, 2011


Before DUNCAN and AGEE, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: William Michael Duncan, AUSTIN & ROGERS, PA, Columbia,
South Carolina, for Appellant. John David Rowell, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Appellant    Michael       Darby        contests       the    sufficiency      of

the    evidence     leading    to    his       conviction          on     one    count     of

conspiracy to possess with intent to distribute 500 grams or

more   of   cocaine    and    50    grams      or    more     of    cocaine       base,   in

violation of 21 U.S.C. § 846, and one count of possession with

intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B).                              Darby also

challenges    the     resulting     292-month            sentenced       imposed    by    the

district court.       For the reasons that follow, we affirm.



                                         I.

                                         A.

            On    October    17,    2007,      Michael       Darby       and    codefendant

Melvin Wright were both indicted in Columbia, South Carolina on

charges of conspiracy to possess with intent to distribute and

to distribute 500 grams or more of cocaine and 50 grams or more

of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(A)      (“Count     One”),     and        possession           with   intent     to

distribute and distribution of five grams or more of cocaine

base   in   violation    of    21    U.S.C.         §§    841(a)(1),        841(b)(1)(B),

841(b)(1)(C) (“Count Two”).            Count One of the indictment alleges

that the conspiracy begins “at least in the middle to late part

of 2003.” The charges largely stem from a controlled purchase of

                                           2
crack    cocaine      whereby       Darby’s     ex-girlfriend,          Keesha     Williams,

agreed to act under the advisement of the Orangeburg Department

of Public Safety and purchase crack cocaine from Darby while

employing audio and video recording devices.

               On November 30, 2006, unbeknownst to Michael Darby,

Keesha    Williams           called     Lieutenant         Samuel       Jenkins     of     the

Orangeburg Department of Public Safety explaining that she could

“help him bring down Michael Darby” by getting Darby to sell her

narcotics.           Williams       agreed     to   have    her    communications        with

Darby recorded.             In one recorded phone conversation, Williams

began by inquiring if the receiver was Darby and Darby replied

affirmatively.             Williams continued by inquiring if she could

purchase an “ounce” for her cousin.                       Darby replied, “I probably

could    get    it    to     him,    but   I   don’t      want    to   meet    him.”     Darby

established the purchase price for the ounce of cocaine to be

$800.

               The next day, on December 1, 2006, Williams drove to

Darby’s    apartment          with     audio        and    video       recording    devices

installed in her car.               Upon arriving at Darby’s apartment, Darby

informed Williams that he could not sell Williams the cocaine at

that time because he had to still “cook it up.” Darby explained

that he only had “salt,” or powder form of cocaine, and not

“hard,”    the       crack    cocaine      that     Williams       sought     to   purchase.

Darby informed Williams that the transaction would take place at

                                                3
codefendant Melvin Wright’s residence and that the cost would

increase to $850.          Though Darby’s face is not captured in the

video, his voice is identified in an audio recording.                     Williams

drove to Wright’s residence after obtaining an additional $50 to

cover the price increase of the crack cocaine.                 After Williams

arrived at Wright’s house, she witnessed Darby arrive and enter

Wright’s house without speaking.              Wright actually conducted the

drug sale by handing Williams crack cocaine through the window.

Shortly     after   the    transaction       between    Williams    and   Wright,

Williams called Darby at the behest of Lt. Jenkins to inquire

why Darby did not personally deliver the crack cocaine to her

and instead chose to involve Wright.               Darby replied that Wright

makes all of his transactions.               Williams gave the crack cocaine

to    Lt.   Jenkins.      Williams    underwent     a   comprehensive     “strip”

search both before she drove to Darby’s apartment on December 1,

2006 and after she handed the drugs over to Lt. Jenkins.

             The Government established the foregoing facts through

the testimony of Keesha Williams.               The government also produced

several audio and video recordings.              An audio recording revealed

the initial phone conversation between Williams and Darby about

the drug sale.          A video recording from the camera installed in

Williams’s car captured the drug transaction between Williams

and    Wright.      A    chemical    analysis    established       that   Williams

purchased 23.97 grams of crack cocaine.

                                         4
               The Government also called Joe Moultrie, a cooperating

federal inmate, to testify about his prior drug dealings with

Darby.     Moultrie testified that he was a supplier for Darby and

began supplying him with crack cocaine in 2002 when he sold

Darby     28    grams    of     crack    cocaine          for   $900.      According        to

Moultrie, he supplied Darby with at least 28 grams of crack

cocaine or more at least once or twice a month until Moultrie’s

arrest in 2004.         Moultrie further testified that, by agreement,

he would supply Darby with the crack cocaine and Darby would pay

him later.       In total, Moultrie estimated that he sold Darby five

kilograms during his time supplying Darby with cocaine.

               The Government also called another cooperating federal

inmate     and    former      drug      dealer,      Stacy      Shannon,        to   testify

pursuant to a written plea agreement in which he had received a

sentence reduction.             Shannon testified that he began dealing

narcotics       with    Darby     in    2003       when    Darby    came    to       him   and

requested to buy four and a half ounces of crack cocaine. He

further        testified      that       shortly          thereafter,      Darby        began

purchasing between 135 grams and two kilograms of cocaine powder

from him. Shannon testified that Wright would often accompany

Darby    when     Shannon       conducted      drug       transactions      with       Darby.

Shannon    estimated       that    he    supplied         Darby    with    at    least     200

kilograms of cocaine out of the 500 kilograms of cocaine he

received while dealing cocaine.

                                               5
               Special Agent Stacy Brown with the Bureau of Alcohol,

Tobacco,       Firearms     and     Explosives    also      testified       for    the

Government.       Special Agent Brown provided the controlled funds

for    the     transaction    and    testified    that      he    was    present     on

December 1, 2006 for the controlled purchase and the subsequent

arrest of Darby.            He further testified that after he advised

Darby     of    his    Miranda    rights,     Darby     voluntarily        made     the

statement      that    he   was   purchasing     kilogram        and    half-kilogram

quantities from a supplier in Mexico every two weeks for four

months.        Special Agent Brown testified that Darby also stated

that he had purchased approximately 5 kilograms in total over

the course of the four months he purchased cocaine from this

supplier.



                                         B.

               On December 19, 2008, a jury found Darby guilty of

both    the    conspiracy     charge    (Count   One)      and    the    distribution

charge (Count Two).           The same jury found Wright not guilty on

the conspiracy charge and guilty on the distribution charge.

Darby     filed    a   motion     for   acquittal     on    December      24,     2008,

claiming that Wright’s acquittal on the conspiracy charge leaves

insufficient evidence that Darby conspired with anybody.                            He

further claimed that insufficient evidence existed to support a



                                          6
guilty verdict on Count Two.                       The district court denied the

motion in an order filed April 20, 2009.

               On January 4, 2010, the district court sentenced Darby

to    292   months     in    prison.           The    292     months    was       within     the

sentencing      guidelines      and      based       upon    the   court      finding       that

Darby   was     responsible     for      at    least        200   kilograms       of   cocaine

throughout the conspiracy, putting him at a base offense level

of 38 pursuant to U.S.S.G. § 2D1.1(c)(1). The court also applied

a    firearm    enhancement         of   two    levels       pursuant    to       U.S.S.G.     §

2D1.1(b)(1).      During      sentencing,            Darby    submitted       a    motion    to

undergo a psychiatric evaluation to determine whether a lesser

sentence would serve the goals of sentencing in Darby’s case.

Darby requested an authorization of $3,500.00 in funds for the

evaluation.        The      court    instead        authorized      $1,600.         When    new

counsel was appointed for Darby, Darby submitted a supplemental

motion requesting $3,500 for an evaluation.                            The court denied

the motion.       This appeal followed.



                                              II.

               Darby   appeals       the      district       court’s    denial         of   his

motion for acquittal and his 292 month sentence.                           Darby contends

that the guilty verdict on Counts One and Two was not supported

by substantial evidence.                 As to Count One, Darby argues that

there was insufficient evidence that he conspired to distribute

                                               7
crack   cocaine    with    anybody   other    than      Wright,   and    Wright’s

acquittal on the conspiracy count creates insufficient evidence

that he conspired with Wright.             As to Count Two, Darby argues

generally that there is insubstantial evidence that Darby is

guilty of possession with intent to distribute and distribution

of five grams or more of cocaine base.

           Darby    further      challenges       his    sentence       as   being

unreasonable      and     in   violation     of    18    U.S.C.     §    3553(a).

Specifically, Darby contests the district court’s: (1) finding

that Darby distributed at least 200 kilograms of cocaine; (2)

application of the firearm enhancement; and (3) refusal to grant

additional funds for a psychiatric evaluation. We discuss each

argument in turn.



                                      A.

           We review a district court’s denial of a motion for

acquittal de novo.         United States v. Green, 599 U.S. 360, 267

(4th Cir. 2010).        In reviewing the sufficiency of the evidence

to support a conviction, we assess whether a rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt when viewing the evidence in the light most

favorable to the prosecution.              Jackson v. Virginia, 443 U.S.

307, 319 (1979). We must uphold the jury’s verdict if there is

substantial evidence to support the verdict when viewing the

                                      8
evidence most favorable to the Government. Glasser v. United

States, 315 U.S. 60, 80 (1942); United States v. Beidler, 110

F.3d   1064,      1067    (4th    Cir.   1997).      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)(citation omitted).                         A

reviewing court does not assess the credibility of witnesses,

but rather assumes “that the jury resolved all contradictions in

testimony in favor of the Government.” Green, 599 F.3d at 367

(quoting United States v. United Med. & Surgical Supply Corp.,

989 F.2d 1390, 1402 (4th Cir. 1993).



                                         1.

            As a preliminary matter, we reject the notion that

Darby’s conviction should be vacated on the conspiracy charge

merely because his co-conspirator Melvin Wright was acquitted on

the same charge.          It is well established that an acquittal of

the appellant’s alleged co-conspirator does not necessitate that

the appellant’s conviction be vacated.                   See United States v.

Powell, 469 U.S. 57, 65 (1984)(holding that a defendant cannot

challenge his conviction merely because it is inconsistent with

jury’s verdict of acquittal on another count); United States v.

Collins,    412    F.3d    515,    519-20     (4th     Cir.    2005)(refusing    to

                                         9
overturn a conspiracy conviction merely because a co-conspirator

was acquitted by the same jury); United States v. Thomas, 900

F.3d 37, 40 (4th Cir. 2002)(holding that an acquittal of sole

co-conspirator       does     not    require        reversal         of     defendant’s

conviction); see also United States v. Andrews, 850 F.3d 1557,

1561   (11th      Cir.      1988)(en      banc)(“Consistent               verdicts     are

unrequired in joint trials for conspiracy: where all but one of

the charged conspirators are acquitted, the verdict against the

one can stand.”); United States v. Vales-Valencia, 823 F.3d 381,

382 (9th Cir. 1987) (“the acquittal of all conspirators but one

does not necessarily indicate that the jury found no agreement

to act”).    Thus, a jury can acquit Wright and still find that a

conspiracy existed between Darby and Wright.

            Darby    seems     to    argue        more     precisely        that     given

Wright’s    acquittal,       the    totality      of     the     evidence     does     not

substantially show that Darby conspired with either Wright or

anyone else.        We disagree.          To prove a conspiracy to possess

cocaine    base   with     intent    to   distribute,          the   Government       must

establish that:(1) an agreement to possess cocaine with intent

to   distribute     existed    between      two    or     more    persons;     (2)     the

defendant    knew     of    the     conspiracy;          and   (3)    the     defendant

knowingly and voluntarily became a part of this conspiracy. See

United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984).

Viewing the evidence most favorably to the Government, we find

                                          10
that there was sufficient evidence to support a conviction for

the conspiracy charge.

            The     evidence      presented         through      Keesha        Williams’s

testimony    established an agreement by Darby to possess cocaine

with the intent to distribute.                    In one recorded conversation

between   Williams       and   Darby,       he    agrees    to     sell   Williams      an

“ounce”   for     her   cousin,   commenting         that    Darby      could    get   the

cocaine to him, but did not want to meet Williams’s cousin.

When Williams drove to meet Darby on the night of the controlled

purchase,    Darby      instructed     Williams       to    meet    him   at    Wright’s

residence to buy the crack cocaine.                 This arrangement of selling

illegal drugs at Wright’s residence where the cocaine had to be

“cooked up” at the very least evinces an agreement between Darby

and Wright.        Darby’s presence at Wright’s residence after his

conversation      with    Williams      corroborates          this      agreement      and

further establishes that he knowingly and voluntarily became a

part in this conspiracy. Darby then told Williams, after the

controlled      purchase,      that    he    used     Wright       to   make    all    his

purchases.      This is patent evidence that a conspiracy existed to

distribute drugs between Darby and Wright.

            Notwithstanding           the        substantial       evidence       of    a

conspiracy established by Williams’s testimony, Shannon provided

further evidence of such a conspiracy.                      Shannon testified that

he sold a total of 200 kilograms of cocaine to Darby, who agreed

                                            11
to pay Shannon for the cocaine after he sold it.                            This agreement

between      Shannon       and     Darby     is    also      sufficient       evidence     to

establish a conspiracy.                  Shannon’s testimony that Wright would

often       accompany       Darby        during     his      drug     transactions          is

circumstantial evidence that a conspiracy existed between Wright

and    Darby.        Moreover,       Moultrie’s       testimony       that    he    supplied

Darby       with     cocaine       establishes        a     conspiratorial         agreement

between Darby and Moultrie.

              Since we find that there was sufficient evidence from

which a reasonable juror could find that Darby was engaged in a

conspiracy between two or more persons, we briefly address the

charge in Count One that the conspiracy involved a distribution

of    500    grams    or    more    of    cocaine     and    50   grams      or    more   with

cocaine base.         It is sufficient to note that Shannon’s testimony

that    Darby        received      200      kilograms       of    cocaine,        Moultrie’s

testimony      that    he    sold    Darby     five       kilograms    of    cocaine,     and

Darby’s      own     statement       that    he    purchased        five     kilograms     of

cocaine from a supplier in Mexico all establish that at least

500 grams of cocaine and 50 grams of cocaine base was intended

to be distributed throughout the conspiracy.                          We therefore find

that the evidence was sufficient to support a guilty verdict as

to Count One.




                                              12
                                                 2.

               Darby’s contention that there is insufficient evidence

to    convict    him     on   Count        Two    is    equally       unavailing.          Darby

asserts that there is little direct evidence linking him to the

distribution       of     the        crack    cocaine      because          that    the    video

recording does not show him exchanging crack cocaine for money

and    there     were    no     phone        records      admitted          to   confirm       that

Williams was in fact talking to Darby.                           Darby argues that his

conviction on Count Two is almost entirely based on what he

believes to be a biased witness--Keesha Williams.

               Williams’s       testimony        against       Darby       is    sufficient     to

uphold    his     conviction          on     Count      Two.      First,         there    is    no

requirement       that    the        prosecution         prove    its        case   by    direct

evidence.       Although there may not be a wealth of the direct and

red-handed evidence that Darby would like to see, the proper

standard is whether there exists substantial evidence--direct or

circumstantial--for             a     rational         juror     to    support       a    guilty

verdict.       In this case, there was a controlled purchase in which

Darby    was     present        at     the    scene      of    the         transaction     after

responding to an offer to purchase drugs for a price that he set

over a recorded phone conversation.                       Williams and Special Agent

Brown both testified that Darby was present at the controlled

purchase where Williams purchased 23 grams of crack cocaine.

The   fact     that     Wright       handed      the    cocaine       to    Williams      at   the

                                                 13
behest of Darby does not absolve Darby from the charge of Count

Two.    Darby’s    own   statement    to    Special       Agent    Brown     that   he

purchased approximately 5 kilograms from his supplier over the

preceding   four    months    coupled      with     the    evidence     that     Darby

actively sold crack cocaine, as evidenced by the December 1,

2006 purchase, is sufficient to uphold Count Two.

            Darby’s argument discounting Williams’s testimony and

undermining   the    credibility      of    other       prosecutorial       witnesses

gains no traction here.           As discussed above, a reviewing court

does not assess the credibility of witnesses, but rather assumes

that the jury resolved issues of credibility in favor of the

Government.



                                       B.

            Darby    challenges      the    district       court’s      finding     at

sentencing which holds him accountable for the distribution of

200    kilograms    of   cocaine    with    5   kilograms         of   cocaine    base

throughout the conspiracy charged in Count One.                        This finding

was necessary for the court to apply a base offense level of 38

pursuant to U.S.S.G. § 2D1.1(C)(1).



                                       1.

            This court reviews a district court’s calculation of

drugs   attributable     to   a    defendant      for     clear    error.      United

                                       14
States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004).                                             The

sentencing guidelines advise the court that in a scenario “where

there is not drug seizure or the amount seized does not reflect

the   scale    of     the       offense,         the      court     shall       approximate      the

quantity      of     the        controlled           substance.”          U.S.S.G.       §    2D1.1,

Application Notes 12.                We find that there is sufficient evidence

in the record to support the district court finding that Darby

was   responsible             for   200     kilograms        of     powder       cocaine       and   5

kilograms of cocaine base.

              The     23.8          grams       seized       from       Williams       after      the

controlled      purchase            does    not        reflect      the    scale       of    Darby’s

conspiracy     to     distribute            cocaine,        so    the     district       court   was

within its discretion to approximate the amount of cocaine for

sentencing purposes.                 In determining the amount of cocaine to

attribute to Darby, the district court properly relied upon the

testimony of Shannon and Moultrie.                           Shannon testified that he

supplied   Darby          a    total       of    200      kilograms       of    powder       cocaine.

Moultrie testified that he had sold Darby a total of 5 kilograms

of cocaine base to Darby.                       We decline to hold that the district

court clearly erred in relying on these two independent bases to

approximate         the       quantity          of     cocaine      for        which   Darby     was

responsible.




                                                     15
                                                2.

               Darby also contests the district court’s application

of the firearm enhancement pursuant to U.S.S.G. § 2D1.1(b)(1),

which increased the defendant’s offense level by two levels. We

review a district court’s application of a firearm enhancement

under this provision for clear error.                      United States v. Manigan,

592 F.3d 621, 626 (4th Cir. 2010).

               The firearm enhancement is proper when “the weapon was

possessed in connection with drug activity that was part of the

same   course        of   conduct        or    common    scheme    as   the    offense    of

conviction.” Id. at 628-29 (internal citations omitted).                                 The

Government must prove the facts needed to support a sentencing

enhancement by a preponderance of the evidence.                         The enhancement

“should   be        applied    if    the      weapon    was   present,    unless    it    is

clearly    improbable          that      the     weapon    was    connected     with     the

offense.” U.S.S.G. § 2D1.1, Application Note 3.

               To    support    the       firearm       enhancement,     the   Government

relied    on    assertions          in   the    presentence       investigation     report

(“PSR”) and Darby’s statement to Special Agent Brown.                              The PSR

reflected that upon Darby’s arrest at his residence on November

8, 2007, agents found 3 firearms, including a .45 caliber pistol

Darby admittedly retrieved from his nightstand when the agents

entered his home to execute a search warrant.                            The Government

proffered       that 400 grams of powder cocaine was found in Darby’s

                                                16
master bedroom and 471 grams of powder cocaine was found in

total.     Further, agents found 39.4 grams of crack cocaine, a set

of digital scales, body armor, and $5,611.00 in U.S. currency at

Darby’s    residence.          We    find        that    the    Government       met     the

preponderance of evidence standard in arguing that the guns,

cocaine, drug paraphernalia, and body armor all indicate that

Darby used the guns to protect himself and the drugs, which in

turn   shows     that   the    weapons      were    used       in   connection    to    the

charged offense.           We therefore hold that there was no clear

error on part of the district court in applying the firearm

enhancement.



                                            3.

            Finally, Darby challenges the district court’s refusal

to   pay   the    $3,500      fee    requested      by     Darby     to    pay   for     the

psychiatrist of his choice.                  The court originally approved a

payment of $1,600 for Darby to hire a psychiatrist, but did not

approve    the   extra     $1,900     that    Darby      argued      was   necessary     to

obtain his preferred psychiatrist.                 He argues that had the court

granted    his    request,     his    preferred         psychiatrist’s       evaluation

would have assisted in determining mitigation factors.                                 Darby

contends     that       the    district       court       ultimately        abused      its

discretion by denying Darby $1,900. We disagree.



                                            17
               We can find no case law, nor does Darby cite any, that

stands for the proposition that a district court must approve

the exact amount of funds that a defendant requests to enable

him to hire the psychiatrist of his choice for the purpose of

exploring      mitigating     factors        during     the    sentencing        phase   of

trial.      Had this request been submitted to determine whether

Darby    was    competent     to     stand    trial,     then       we   would       inquire

whether there was reasonable cause to believe that Darby was

suffering      from    a   mental    defect     which    rendered        him    unable   to

understand       the    nature      and   consequences         of    the       proceedings

against him.           See 18 U.S.C.A. § 4241(a) (West 2000 & Supp.

2007). However, this is not the case.                    Darby’s argument, aside

from having no basis in law, is highly speculative.                            He does not

assert    his    incompetency        either     during        the   trial       or    after.

Rather,   he     claims     that     an   evaluation      may       have    produced     an

opinion that would cause the district court to depart downward

from the advisory guidelines.                The only consideration that Darby

points to is Darby’s age and lack of a prior record. This is not

enough to find that the court abused its discretion.                             Moreover,

the court considered Darby’s lack of a prior record in assigning

him a Criminal History Category of I.                         The court ultimately

imposed a sentence that was on the lower end of the advisory

sentencing guidelines.



                                           18
          We find it important to highlight that the district

court did grant Darby funds to procure a psychiatric evaluation.

However minimal the approved funds may have been, Darby does not

argue that the funds granted would be insufficient to hire a

psychiatrist   to   conduct   an     evaluation--only   that   it   was

insufficient to hire his preferred psychiatrist.

          We find that the court did not abuse its discretion in

denying Darby’s motion for additional funds for the purposes of

a psychiatric evaluation.     We further find that the sentence

rendered by the district court was not an abuse of discretion as

it was not only within the advisory sentencing guidelines, it

was also at the lower end of those guidelines.



                                   III.

          For the foregoing reasons, we affirm the judgment of

the district court.

                                                               AFFIRMED




                                    19
