                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4420


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MANUEL CAMACHO GARCIA, a/k/a Meno,

                Defendant - Appellant.



                               No. 12-4783


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TIMOTHY LEON STREET, a/k/a Supreme,

                Defendant - Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00253-TDS-3; 1:11-cr-00253-TDS-7)


Submitted:   August 15, 2013                 Decided:   August 23, 2013


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Anne M. Hayes, Cary, North Carolina; James B. Craven, III,
Durham, North Carolina, for Appellants. Ripley Rand, United
States Attorney, Sandra J. Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            A    federal       jury      convicted         Manuel       Camacho       Garcia     of

conspiracy      to    distribute        cocaine,          in    violation       of    21    U.S.C.

§ 846 (2006), and convicted Timothy Leon Street of conspiracy to

distribute      cocaine      and    marijuana,            in    violation       of    21    U.S.C.

§ 846.     The district court sentenced Garcia to 140 months of

imprisonment,         and      sentenced            Street        to      245        months      of

imprisonment, and they now appeal.                     Finding no error, we affirm.

            Garcia         argues       on     appeal          that     the     evidence        was

insufficient to support his conviction because the Government

failed     to    demonstrate            that     he       knowingly        joined          in   the

conspiracy.          We review a district court’s decision to deny a

Fed. R. Crim. P. 29 motion for a judgment of acquittal de novo.

United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).                                        A

defendant challenging the sufficiency of the evidence faces a

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

(4th Cir. 1997).           The verdict of a jury must be sustained “if,

viewing    the       evidence      in    the        light       most    favorable          to   the

prosecution,         the     verdict           is      supported          by      ‘substantial

evidence.’”           Smith,      451    F.3d        at     216       (citations      omitted).

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         quotation           marks        and        citation       omitted).

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Furthermore, “[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   and   citation   omitted).         “Reversal      for

insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.”      Id. (internal quotation marks

and citation omitted).

            In order to prove that Garcia conspired to distribute

cocaine, the Government needed to show (1) an agreement between

two or more persons, (2) that Garcia knew of the agreement, and

(3) that Garcia knowingly and voluntarily joined the conspiracy.

United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en

banc)   (citations   omitted).   However,   the    Government    was   not

required to make this showing through direct evidence.          In fact,

“a conspiracy may be proved wholly by circumstantial evidence,”

and therefore may be inferred from the circumstances presented

at trial.    Id. at 858.    We have thoroughly reviewed the record

and conclude that the Government provided sufficient evidence

from which the jury could conclude that Garcia was guilty of the

conspiracy charge.

            Street argues on appeal that the district court erred

in admitting the transcripts of recorded phone calls between the




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coconspirators because the transcripts identified the speakers. *

“We   review   a    trial    court’s   rulings     on   the   admissibility    of

evidence for abuse of discretion, and we will only overturn an

evidentiary ruling that is arbitrary and irrational.”                     United

States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011) (internal

quotation marks and citation omitted).              In addition, we will not

“set aside or reverse a judgment on the grounds that evidence

was erroneously admitted unless justice so requires or a party’s

substantial rights are affected.”                Creekmore v. Maryview Hosp.,

662 F.3d 686, 693 (4th Cir. 2011) (citing Fed. R. Civ. P. 61).

Our   review   of   the     record   and   the   relevant     legal   authorities

leads us to conclude that the district court did not commit

error in admitting the transcripts of the recorded calls.

           Finally, Street argues that he should not have been

attributed a criminal history point for a prior conviction to

which he pleaded guilty but received no term of imprisonment.

In    reviewing     the     district   court’s      calculations      under   the


      *
       Street has also filed a Fed. R. App. P. 28(j) letter
citing the Supreme Court’s recent decision in Alleyne v. United
States, ___ U.S. ___, 133 S. Ct. 2151 (2013), in which the Court
determined that any fact that increases a statutory mandatory
minimum term of imprisonment must be submitted to the jury.
Here, as the drug weights were charged in the indictment,
submitted to the jury, and found by the jury beyond a reasonable
doubt, and no other factors affecting the statutory mandatory
minimum were found to be applicable to Street, his sentence did
not violate the mandate of Alleyne.



                                           5
Guidelines, “we review the district court’s legal conclusions de

novo      and     its       factual       findings        for      clear      error.”         United

States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal

quotation         marks      and    citation       omitted).           We     will    “find    clear

error only if, on the entire evidence, we are left with the

definite and firm conviction that a mistake has been committed.”

Id. at 631 (internal quotation marks, alteration, and citation

omitted).

                Under the Guidelines, a district court shall assign

(a)       three    criminal          history       points       to      prior        sentences    of

imprisonment exceeding one year and one month, (b) two criminal

history points to prior sentences of imprisonment of at least

sixty days, and (c) one criminal history point for each prior

sentence other than those counted in subsections (a) and (b), up

to    a    total      of    four     points       under     subsection         (c).      See     U.S.

Sentencing         Guidelines            Manual    (“USSG”)        §    4A1.1(a)-(c)       (2012).

Here, the district court properly assigned one criminal history

point to Street’s prior conviction for misdemeanor possession or

sale of alcoholic beverages without a permit, a conviction for

which      Street          did     not    receive       a    sentence         of     imprisonment.

Further,        the     number       of    criminal         history      points       assigned    to

Street       for      prior        sentences       of       less       than    sixty     days     of

imprisonment          equaled        the    maximum         permissible        total     of    four.



                                                   6
Therefore,      the   district   court    did     not    err    in    calculating

Street’s criminal history category.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions     are   adequately   presented      in    the    materials

before   this    court   and   argument   would    not   aid    the    decisional

process.

                                                                         AFFIRMED




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