                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4811



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


NOE C. LAUREANO,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-04-112)


Submitted:   May 27, 2005                  Decided:   July 12, 2005


Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael MacKinnon, Greenville, South Carolina, for Appellant.
Regan Alexandra Pendleton, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Noe C. Laureano appeals from his conviction and seventy-

month sentence imposed following a jury trial on a charge of

conspiracy    to      possess   with   intent    to    distribute     cocaine     in

violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2005).

Laureano’s counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), stating that there were no meritorious issues

for appeal, but challenging the sufficiency of the evidence to

support   the    jury’s    verdict.       Laureano      has   filed    a    pro   se

supplemental brief, arguing the sufficiency of the evidence and

challenging     his    sentence.       Because   our   review   of    the   record

discloses no reversible error, we affirm Laureano’s conviction and

sentence.

            This court reviews de novo the district court’s decision

to deny a motion for judgment of acquittal.                   United States v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997).                Where, as here, the

motion was based on insufficient evidence, “[t]he 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).

            The evidence at trial showed that Jaime Sanchez Brito was

stopped for a moving violation en route to deliver a package of

cocaine to Francisco Castillo.            He consented to a search of his

vehicle, and a package containing cocaine was discovered on the


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floorboard.      He agreed to cooperate with the police officers and

conduct a controlled delivery of a substitute package.                     Brito

called Castillo and was told to come to Castillo’s house.                  Brito

initially agreed, but later called Castillo to report that he had

a flat tire.     Castillo agreed to meet at Brito’s location.            Instead

of Castillo, Laureano arrived at the location and parked next to

Brito’s vehicle.        Laureano accepted the package which purportedly

contained cocaine and placed it in his vehicle.               Once arrested, in

response to inquiries as to whether there were drugs in his

vehicle, Laureano responded, “you know what’s in the truck, you

know what a setup is.”         (Tr. at 96).           Viewed in the light most

favorable   to    the    Government,    we     find   that   this   evidence   was

sufficient for the jury to find Laureano guilty beyond a reasonable

doubt of conspiracy to possess with intent to distribute cocaine.

See Glasser, 315 U.S. at 80; United States v. Burgos, 94 F.3d 849,

862-63 (4th Cir. 1996) (defining “substantial evidence”).

            Although Laureano argued that he did not know what was in

the package and that he merely went to assist Brito with the flat

tire, the jury was free to reject this argument.                      See United

States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (holding that

credibility determinations are within the sole province of the

jury).   Thus, we find that the district court properly denied

Laureano’s motion for judgment of acquittal and affirm Laureano’s

conviction.


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          In a supplemental brief, Laureano challenges his sentence

under United States v. Booker,      U.S.   , 125 S. Ct. 738 (2005),

contending that the district court violated his Sixth Amendment

rights by treating the Sentencing Guidelines as a mandatory system

for purposes of determining his sentence. Our review of the record

convinces us that no Sixth Amendment violation occurred because

Laureano did not receive a sentence in excess of that authorized by

the jury’s verdict alone.    With regard to the application of the

Sentencing Guidelines as mandatory, Laureano did not object in the

district court; thus, our review is for plain error.        United

States v. White, 405 F.3d 208, 215 (4th Cir. 2005).

          To demonstrate plain error, Laureano must establish that

error occurred, that it was plain, and that it affected his

substantial rights.   Id. (citing United States v. Olano, 507 U.S.

725, 732 (1993)). Although “the imposition of a sentence under the

former mandatory guidelines regime rather than under the advisory

regime outlined in Booker is error,” White, 405 F.3d at 216-17, we

find that Laureano has failed to carry his burden of showing that

the error affected his substantial rights.   See id. at 223; Olano,

507 U.S. at 734-35.   Because our review of “the record as a whole

provides no nonspeculative basis for concluding that treatment of

the guidelines as mandatory” resulted in actual prejudice, this

error may not be corrected on appeal.      Fed. R. Crim. P. 52(b);

White, 405 F.3d at 223-25.


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          As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal.      We therefore

affirm Laureano’s conviction and sentence.    This court requires

that counsel inform his client, in writing, of his right to

petition the Supreme Court of the United States for further review.

If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on the

client. 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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