                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-4499


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

JOHNNIE BUTLER,

                  Defendant – Appellant.



                              No. 10-4566


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

CALVIN WRIGHT, a/k/a Turkey,

                  Defendant – Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:08-cr-00381-BEL-1; 1:08-cr-00381-BEL-2)


Submitted:   May 2, 2011                     Decided:   May 18, 2011


Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Thomas J. Saunders, Baltimore, Maryland; James Wyda, Federal
Defender,   Meghan  S.   Skelton,   Staff  Attorney, Greenbelt,
Maryland, for Appellants.     Rod J. Rosenstein, United States
Attorney, Christine Celeste, Special Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Johnnie       Butler    and          Calvin     Wright      appeal     their

convictions following a jury trial.                  Both men were convicted of

conspiracy to distribute and possess with intent to distribute

controlled substances, in violation of 21 U.S.C. § 846 (2006)

(Count   One);     possession      of    a       firearm    in     furtherance     of    a

drug-trafficking          crime,        in        violation        of     18     U.S.C.

§ 924(c)(1)(A)(i)       (2006)     (Count        Three);     and    possession     of    a

firearm after a felony conviction, in violation of 18 U.S.C.

§ 922(g)     (2006)     (Count     Four).            Additionally,        Wright        was

convicted of possession of heroin, with intent to distribute, in

violation    of   21    U.S.C.     § 841(a)(1),           (b)(1)(C)     (2006)   (Count

Five).      The   court    sentenced      Butler      to    life    imprisonment        and

Wright to 420 months’ imprisonment.                 We affirm.

            Wright argues that the evidence was not sufficient to

support the jury’s finding that he possessed the heroin found in

his apartment.        This court reviews a sufficiency-of-the-evidence

challenge by determining whether, viewing the evidence in the

light most favorable to the Government, any rational trier of

fact could find the essential elements of the crime beyond a

reasonable doubt.         United States v. Collins, 412 F.3d 515, 519

(4th Cir. 2005).          Our review of the evidence convinces us that

the evidence adduced at trial was sufficient to establish that

Wright possessed the heroin and intended to distribute it.

                                             3
              Wright and Butler argue that the district court erred

in denying their motion for a mistrial after a court security

officer made comments to the jury regarding the origin of a

firearm.      “[D]enial of a defendant’s motion for a mistrial is

within the sound discretion of the district court and will be

disturbed only under the most extraordinary of circumstances.”

United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997).

Given the brief nature of the comments at issue here and the

curative      instruction      given      by       the    court,   we    find       that    the

district      court    did     not     abuse         its    discretion         in     denying

Appellants’ motion for a mistrial.

              Butler argues that because the jury acquitted him of

possession     and    discharge      of   a        firearm,    causing     the      death   of

Fernando Rodriguez, in furtherance of a drug-trafficking crime,

the   court    erred    by    taking      that       conduct      into   account       during

Butler’s sentencing.          However, conduct for which a defendant has

been acquitted may nonetheless be considered by the district

court   in    determining      a   sentence,          so   long    as    the    conduct      is

established      by    a     preponderance           of    the     evidence.           United

States v. Young, 609 F.3d 348, 357 (4th Cir. 2010).                                 Here, the

Government provided sufficient evidence upon which the district

court could base its finding that Butler had caused Rodriguez’s

death by a preponderance of the evidence, even if such evidence

was not sufficient to establish the offense charged beyond a

                                               4
reasonable doubt.        Accordingly, the court did not err in taking

such conduct into account during sentencing.

            Finally, Butler argues that the district court erred

in   finding    that    Butler   was        an    organizer       or    leader    of    the

criminal activity, pursuant to U.S. Sentencing Guidelines Manual

§ 3B1.1, and accordingly applying a sentencing enhancement.                             We

review this determination for clear error.                     See United States v.

Slade,   631   F.3d     185,   188    (4th       Cir.    2011);    United      States   v.

Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).                          We find that the

district court did not clearly err because the enhancement is

supported by evidence in the record.

            We therefore affirm the convictions and sentences of

Butler and Wright.         We deny Wright’s motion to file a pro se

supplemental     brief     and       deny        Butler’s      motion     for    summary

reversal.      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




                                            5
