                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4739


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NYRON JOEL NICHOLS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     Glen E. Conrad, Chief
District Judge. (7:07-cr-00006-gec-1)


Submitted:   April 15, 2011                   Decided:   May 20, 2011


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant.     Timothy J. Heaphy,
United States Attorney, R. Andrew Bassford, Assistant United
States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Nyron       Joel     Nichols       was     convicted       by    a      jury     of

conspiracy to possess with intent to distribute fifty grams or

more   of   cocaine       base,       and   a   measurable        quantity     of     cocaine

powder,     in   violation       of    21    U.S.C.     §§   841(a)(1),       846     (2006),

three counts of distributing a measurable quantity of cocaine

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

possessing       a   firearm      in    furtherance          of    a   drug    trafficking

offense     and/or       using    or    carrying        a    firearm     during       and     in

relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)       (2006).           The      district      court     imposed       a     life

sentence on the offenses involving cocaine base, with concurrent

240-month sentences on the offenses involving cocaine powder,

and a consecutive sixty-month sentence on the firearm offense.

We affirm.

             On appeal, Nichols first contends that the indictment

was defective.           Our review of the record leads us to conclude

that Nichols’ claim is without merit, and in any event, because

Nichols failed to assert this claim before trial, it is waived.

Fed. R. Crim. P. 12(b)(3), (e).

             Nichols       next       contends        that    the      district       court’s

forfeiture       order    was    improperly         entered       because     none    of     the

offenses of conviction were forfeiture related, and the jury did

not decide the forfeiture issue.                      A defendant who is convicted

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of a drug trafficking offense shall forfeit property obtained as

a result of the offense.                 21 U.S.C. § 853 (a)(1); United States

v.    McHan,       345   F.3d    262,    267-68        (4th       Cir.    2003).        Moreover,

although       a    defendant     has        a     right     to    have    a    jury    decide    a

forfeiture issue, the defendant must affirmatively assert that

right.        Fed.       R.   Crim.     P.       32.2(b)(5).         After      reviewing       the

record, we conclude that Nichols was convicted of an offense

requiring      forfeiture        of     property        obtained         in    connection       with

that offense, and waived his right to have a jury decide the

forfeiture issue.

               Next,        Nichols     challenges            the    sufficiency           of   the

evidence       supporting        his    convictions.                We    review      de   novo   a

district court’s denial of a Fed. R. Crim. P. 29 motion for a

judgment of acquittal.                 United States v. Green, 599 F.3d 360,

367    (4th        Cir.),     cert.    denied,         131    S.    Ct.       271    (2010).       A

defendant challenging the sufficiency of the evidence “bears a

heavy burden.”              United States v. Beidler, 110 F.3d 1064, 1067

(4th Cir. 1997).              A jury verdict must be sustained “if, viewing

the evidence in the light most favorable to the prosecution, the

verdict is supported by ‘substantial evidence.’”                                    United States

v.    Smith,       451    F.3d   209,        216    (4th     Cir.    2006).           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.”                                       Id. (internal

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quotation marks omitted).                 “[T]he jury, not the reviewing court,

weighs     the    credibility             of     the          evidence     and       resolves      any

conflicts in the evidence presented.”                            Beidler, 110 F.3d at 1067

(internal quotation marks omitted).                             “Reversal for insufficient

evidence is reserved for the rare case where the prosecution’s

failure is clear.”            Id. (internal quotation marks omitted).

            To establish Nichols’ guilt under 21 U.S.C. § 846, the

evidence    must       show    that:           (1)       an    agreement        to    possess     and

distribute cocaine powder and cocaine base existed between two

or more people; (2) Nichols knew of the conspiracy; and (3)

Nichols     knowingly         and     voluntarily                became     a        part    of   the

conspiracy.        United States v. Kellam, 568 F.3d 125, 139 (4th

Cir.),    cert.    denied,          130    S.        Ct.      657   (2009).          To     establish

Nichols’ guilt under 21 U.S.C. § 841(a)(1), the evidence must

show   that:     (1)    Nichols       possessed               cocaine     powder       and    cocaine

base; (2) he had knowledge that he possessed cocaine powder and

cocaine    base;    and       (3)    he    intended            to   distribute         the    cocaine

powder and cocaine base.                   United States v. Randall, 171 F.3d

195, 209 (4th Cir. 1999).                  Our review of the record leads us to

conclude    that       the     evidence             overwhelmingly          established           that

Nichols    was     guilty       beyond          a    reasonable          doubt       of     the   drug

offenses.

            To establish Nichols’ guilt under 18 U.S.C. § 924(c),

the    evidence    must       show        that       Nichols:       (i)    committed          a   drug

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trafficking crime; and (ii) possessed a firearm in furtherance

of that crime.         18 U.S.C. § 924(c)(1)(A).           As previously noted,

Nichols   committed      several    drug       trafficking   offenses.          However,

whether a firearm furthered, advanced, or helped forward one of

Nichols’ drug trafficking crimes is a question of fact.                          United

States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).                               After

reviewing the record, we conclude that the evidence likewise

overwhelmingly        established   that       Nichols    was    guilty       beyond    a

reasonable doubt of the § 924(c) offense.

              Nichols   next   claims      that    several      items    of     evidence

were prejudicial and improperly admitted at trial.                       We review a

district court’s evidentiary rulings for abuse of discretion.

United States v. Blake, 571 F.3d 331, 350 (4th Cir. 2009), cert.

denied, 130 S. Ct. 1104 (2010).                   A district court abuses its

discretion when its decision to admit evidence was arbitrary and

irrational.         United States v. Weaver, 282 F.3d 302, 313 (4th

Cir. 2002).         A district court’s evidentiary rulings are subject

to review for harmless error under Fed. R. Crim. P. 52.                          United

States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008).                           Evidence

is unfairly prejudicial when “there is a genuine risk that the

emotions of a jury will be excited to irrational behavior, and

this   risk    is    disproportionate      to     the   probative       value    of   the

offered evidence.”        United States v. Williams, 445 F.3d 724, 730

(4th   Cir.     2006)     (internal     quotation        marks,     citation,         and

                                           5
alteration     omitted).           Our       review    of    the    record     leads    us   to

conclude that the district court did not abuse its discretion in

admitting the challenged evidence.

              Nichols      next    claims        that       the    Government      committed

prosecutorial        misconduct         in    offering      perjured      testimony.         In

support of his claim that the Government’s witnesses perjured

themselves,        he    points    to    alleged       inconsistencies          between      the

witnesses’ trial testimony and various other pieces of evidence

in the case.        Despite Nichols’ effort to characterize this claim

as one of prosecutorial misconduct, it is, at bottom, nothing

more   than    an       attack    on    the    credibility          of   the    Government’s

witnesses.         By convicting Nichols, however, the jury found that

the Government’s witnesses were credible, and we do not review

the jury’s credibility determinations on appeal.                               United States

v. Wilson, 484 F.3d 267, 283 (4th Cir. 2007).

              Nichols      next    claims       that    the       incarcerated     witnesses

that testified at his trial were all kept in the same holding

cell at the courthouse, thereby giving them the opportunity to

discuss and coordinate their testimony, in violation of the Fed.

R. Evid. 615. Federal Rule of Evidence 615 provides in part that

“[a]t the request of a party the court shall order witnesses

excluded      so    that    they       cannot       hear     the    testimony      of   other

witnesses, and it may make the order of its own motion.”                                     We

conclude that nothing in the rule requires that witnesses be

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separated before or after their testimony.                          Accordingly, we find

Nichols’ claim without merit.

               Nichols next claims that the Government violated his

constitutional rights by failing to turn over witness statements

and other evidence that was allegedly exculpatory in nature.                                 To

establish a violation pursuant to Brady v. Maryland, 373 U.S. 83

(1963),    a     defendant       must       show       that   the    Government        withheld

evidence       that     was     favorable         to    the   defendant      and   that    was

material    as     to    his     guilt      or    innocence.         Id.    at   87.      After

reviewing        the     record,       we        conclude     that      Nichols     has    not

established that the Government failed to turn over exculpatory

evidence.

               Nichols also argues that his sentence is procedurally

and substantively unreasonable.                        This Court reviews a sentence

for reasonableness, using an abuse of discretion standard of

review.     Gall v. United States, 552 U.S. 38, 50 (2007).                                  The

first step in this review requires the court to ensure that the

district        court        committed      no        significant       procedural       error.

United    States        v.    Evans,     526      F.3d   155,    161    (4th     Cir.    2008).

Procedural errors include “failing to calculate (or improperly

calculating) the Guidelines range or failing to consider the §

3553(a)factors.”              United States v. Carter, 564 F.3d 325, 328

(4th     Cir.    2009)        (internal          quotation      marks      omitted).       The

district court must make an individualized assessment based on

                                                  7
the facts presented by applying the relevant § 3553(a) factors

to the circumstances of the case.               Gall, 552 U.S. at 51.             The

court       then    considers   the   substantive     reasonableness       of     the

sentence, taking into account the totality of the circumstances.

Id.

              Nichols challenges the district court’s determination

of    the    drug    weight   attributable     to   him,   and    claims   that    it

considered unreliable evidence in making its determination.                         A

district court’s finding regarding drug weights is factual in

nature and is therefore reviewed for clear error.                   United States

v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996).                 In conducting this

review, we give due regard to the district court's opportunity

to judge the credibility of witnesses.                     18 U.S.C. § 3742(e)

(2006).       Credibility determinations therefore receive deference

unless they are without support in the record.                   United States v.

Brown, 944 F.2d 1377, 1379-80 (7th Cir. 1991).                       Moreover, a

district       court    is    permitted   to    consider     any    relevant      and

reliable evidence before it imposes sentence.                    United States v.

Bowman, 926 F.3d 380, 381 (4th Cir. 1991).                  After reviewing the

record, we conclude that the district court properly grouped the

drug counts and did not commit clear error in determining the

drug weights attributable to Nichols.

              Nichols next challenges the district court’s finding

that he obstructed justice, warranting a two-level enhancement

                                          8
to his offense level.            We review a district court’s factual

findings,     including      those     that   serve        as    a     basis    for   an

obstruction       of   justice       enhancement      under          U.S.   Sentencing

Guidelines Manual (“USSG”) § 3C1.1, for clear error.                              United

States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004).                           We review

the   district     court’s    legal    interpretation           of    the   Sentencing

Guidelines de novo.       United States v. Dawkins, 202 F.3d 211, 214

(4th Cir. 2000).

             A two-level enhancement in a defendant’s offense level

is authorized if the defendant attempts to suborn perjury, or

unlawfully influences, or attempts to influence a witness in

connection with a sentencing hearing.                  USSG § 3C1.1, cmt. n.

4(a), (b).     We find that the district court properly determined

that Nichols had obstructed justice, warranting the two-level

enhancement in his offense level.

            Nichols next argues that the district court improperly

found that he had a leadership role in the drug conspiracy,

warranting    a    three-level       enhancement      to    his       offense     level.

Under USSG § 3B1.1(b), a three-level enhancement is authorized

“[i]f the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or

more participants or was otherwise extensive.”                        The enhancement

under § 3B1.1(b) is justified if the defendant supervises at

least one person, and the criminal activity involved five or

                                         9
more participants.           United States v. Bartley, 230 F.3d 667, 673

(4th Cir. 2000).            Our review of the record leads us to conclude

that the district court properly applied USSG § 3B1.1(b), and

correctly increased Nichols offense level by three levels.

               Accordingly,      we     conclude        that       the    district       court

properly       calculated     Nichols’      Guidelines         range,      considered         the

parties’       arguments,     made    an    individualized           assessment        on     the

facts presented, and adequately explained the reasons for the

chosen    sentence.           Thus,   Nichols’         sentence          was   procedurally

reasonable.

               Nor     was      the        sentence           imposed          substantively

unreasonable.           A     sentence      within       the       properly      calculated

Guidelines range is presumptively reasonable.                            United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007).                           Here, we find that

the district court correctly determined that Nichols’ Guidelines

range    was    life   imprisonment,         and      that    Nichols      has       failed    to

rebut    the     presumption     of     reasonableness             accorded      a    sentence

within the Guidelines.

               Nichols also claims that the sixty-month sentence for

the § 924(c) offense was improperly imposed because he received

a   higher     mandatory      minimum      sentence      on    a    different         count    of

conviction.          Nichols’    argument        is    foreclosed         by    the    Supreme

Court’s recent decision in Abbott v. United States, 131 S.Ct. 18



                                            10
(2010).    Finally, Nichols’ argument that twelve jurors were not

present at all times during trial is without merit.

           Accordingly, we affirm the district court’s judgment.

We deny Nichols’ motion to file a pro se supplemental brief.         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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