                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-5210



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


AARON RILEY, a/k/a Fresh,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:04-cr-00011)


Submitted:   March 21, 2008                 Decided:   April 25, 2008


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Elkins, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Aaron Riley was convicted by a jury of three counts of

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

(2000), and   two counts of illegal use of a communication facility

to distribute drugs, in violation of 21 U.S.C. § 843(b) (2000).           On

appeal, he challenges the sufficiency of the evidence to sustain

his    conviction   on   Count   Five,    charging   illegal   use   of   a

communication facility to distribute drugs, in violation of 21

U.S.C. § 843(b) (2000).     Because the evidence, viewed in the light

most favorable to the Government, does not support a finding beyond

a reasonable doubt that Riley used a telephone to facilitate the

sale of cocaine on April 7, 2003, we reverse his conviction on

Count Five and remand to the district court for resentencing.

           In April 2003, Wayne Simms was working as a confidential

informant for the West Virginia State Police.          On the morning of

April 3, Simms drove to a house in an area called Misty Terrace and

met Riley.    Riley sold Simms approximately 1.25 grams of cocaine,

and they discussed the possibility of an additional sale later that

day.   That afternoon, Simms made a phone call to Riley to set up a

second buy.   The telephone call was controlled and recorded by the

police.    Simms returned to Misty Terrace, met Riley at the same

location, and bought approximately .95 grams of cocaine.         On April

7, Simms again returned to Misty Terrace and bought approximately

1.86 grams of cocaine from Riley.        Because Simms wore a wire, the


                                  - 2 -
evidence presented at trial included an audio recording of each of

the three controlled buys, as well as an audio recording of the

controlled phone call placed on April 3.

              A defendant challenging the sufficiency of the evidence

to support his conviction bears “a heavy burden.” United States v.

Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995).                      In reviewing the

sufficiency of the evidence, we determine 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. See Glasser v. United States, 315

U.S. 60, 80 (1942); United States v. Tresvant, 677 F.2d 1018, 1021

(4th   Cir.    1982).      We   review    both   direct    and    circumstantial

evidence,      and    permit    the    “[G]overnment     the    benefit   of   all

reasonable inferences from the facts proven to those sought to be

established.”        Tresvant, 677 F.2d at 1021.         This court will uphold

the jury’s verdict if there is substantial evidence to support it,

and will reverse only in those rare cases “where the prosecution’s

failure is clear.”        United States v. Beidler, 110 F.3d 1064, 1067

(4th Cir. 1997) (citation omitted).

              Because Riley failed to raise his sufficiency claim at

trial via a Fed. R. Crim. P. 29 motion for judgment of acquittal,

his appeal of this issue may be reviewed only for plain error.                 See

United States v. Wallace, 515 F.3d 327 (4th Cir. 2008).                    Riley

therefore must demonstrate: (1) there was error; (2) the error was


                                        - 3 -
plain, meaning obvious or clear under current law; and (3) the

error affected his substantial rights. United States v. Olano, 507

U.S. 725, 732-34 (1993).   Even if these criteria are met, the error

will not be noticed unless it seriously affects the fairness,

integrity, or public reputation of the proceedings.    Id. at 736.

            Count Five charged Riley with a violation of 21 U.S.C.

§ 843(b) in connection with the April 7 sale of cocaine to Simms.

To obtain a conviction under § 843(b), the Government must prove

the following elements beyond a reasonable doubt:     (1) that Riley

used a telephone; (2) to commit, cause or facilitate the commission

of a drug offense; and (3) that Riley did so knowingly and

intentionally.     See United States v. Johnstone, 856 F.2d 539,

542-43 (3d Cir. 1988).

            Riley correctly notes the Government failed to introduce

any direct evidence of a phone call placed in connection with the

April 7 cocaine sale.    The Government recognizes its omission, but

argues that a phone call can be inferred from five facts in

evidence.    First, that during the April 7 buy, Simms expressed a

disappointed expectation in what Riley had available for sale. The

Government argues this leads to a reasonable inference that a prior

conversation occurred creating Simms’ expectation.      Second, the

Government relies on Simms’ testimony regarding the April 7 buy

that he “went to the house . . . to make the buy    . . . .”   Here,

the Government strains to suggest that because Simms expressed no


                                - 4 -
uncertainty, his testimony indicates a prior conversation between

Simms and Riley must have occurred.

             Third,       the    Government     notes    that     Riley    and    Simms

exchanged phone numbers during the April 3 buy, as Simms testified,

so they could “contact one another on future buys.”                       Fourth, the

Government highlights that Riley and Simms were strangers to each

other until they met on April 31 and that Simms lived out of town.

Finally, the Government notes that, at the conclusion of their

exchange on April 7, Simms said to Riley, “I’ll give you a call.”2

These     facts,    the     Government       argues,   indicate    that    the    prior

conversation must have occurred on the telephone.

             Viewed in the light most favorable to the Government, we

conclude no rational trier of fact could find beyond a reasonable

doubt that Riley used a telephone to facilitate the sale of cocaine

on   April   7.      Even       if   one   could   reasonably     infer    that       some

conversation took place prior to the controlled buy on April 7, it

is   no   more     likely    that     such    conversation   took    place       on    the

telephone than in person.                  The first buy on April 3 was made

without prior arrangement by telephone.                 The second buy was made


      1
      The Government makes no citation to the record for this
proposition.
      2
      Here again, the Government makes no citation to the record.
This evidence is apparently part of the audio tape entered as
Exhibit 4 at trial. That audio tape was not included in the joint
appendix and is not before this court.      No witness at trial
repeated or confirmed this “I’ll give you a call” statement from
the audio tape.

                                           - 5 -
with prior arrangement by telephone. The inferences created by the

Government’s evidence do not make the use of a telephone more

likely than not, and certainly do not establish that critical fact

beyond a reasonable doubt.

          Even if a reasonable jury could infer that a phone call

had occurred, there is no evidence to support a finding about the

content of any such phone call.    The evidence presented in this

case stands in stark contrast to those cases in which we have found

sufficient evidence supporting a conviction under § 843(b).    See

e.g., United States v. Pratt, 351 F.3d 131, 138 (4th Cir. 2003)

(where “there is no dispute that a telephone was used,” finding

sufficient evidence that the phone call was used to set the final

time for the transaction); United States v. Lozano, 839 F.2d 1020,

1023 (4th Cir. 1988) (where defendant “does not deny that he made

a phone call,” sufficient evidence that phone call used to announce

his arrival in Virginia to handle problem related to cocaine).

          Accordingly, we conclude that this is one of those rare

cases “where the prosecution’s failure is clear.”     Beidler, 110

F.3d at 1067.   Because the evidence is insufficient to establish

the use of a telephone to facilitate the controlled buy on April 7,

we reverse Riley’s conviction on Count Five and remand to the

district court for resentencing.   We dispense with oral argument

because the facts and legal contentions are adequately presented in




                              - 6 -
the materials before the court and argument would not aid the

decisional process.



                                         REVERSED AND REMANDED




                            - 7 -
