UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                      No. 96-4217

REGINALD WILLIAMS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.                                      No. 96-4230

REGINALD WILLIAMS,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert E. Payne, District Judge.
(CR-95-332-A)
Argued: March 6, 1997

Decided: April 23, 1997

Before HAMILTON and WILLIAMS, Circuit Judges, and
KISER, Chief United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part, vacated in part and remanded for resentencing by
unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Gregory Bruce English, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant. Jill Dana Odell, Special Assistant
United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey,
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

OPINION

PER CURIAM:

Reginald Williams (Williams), an inmate at the Lorton Reforma-
tory in Lorton, Virginia, challenges the sufficiency of the
evidence to
support his conviction for possession of heroin with intent to
distrib-
ute. See 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). He also challenges
the
district court's denial of his Federal Rule of Criminal Procedure
33
motion for a new trial on that conviction and his related
conviction
for being a prisoner in possession of heroin, see 18 U.S.C. § 13
(assimilating §§ 53.1-203(5) and 18.2-10 of the Code of Virginia,
1950, as amended), which he brought on the basis of newly discov-
ered evidence. The government cross-appeals Williams' sentence of
sixty months' imprisonment. For reasons that follow, we affirm Wil-
liams' convictions, but vacate his sentence and remand for
resentenc-
ing.

I.

Viewing the evidence at trial in the light most favorable to the
gov-
ernment, as we must when reviewing a defendant's challenge to the
sufficiency of the evidence to support his conviction, Glasser v.
United States, 315 U.S. 60, 80 (1942), the following facts are
estab-

                                 2
lished. During the early evening of July 4, 1994, correctional
officers
at Dormitory One at the Occoquan Facility of the Lorton Reformatory
conducted a shakedown of the dormitory's inmates prompted by a
drug overdose of an inmate earlier that day. As part of the
shakedown,
the correctional officers conducted a strip search of each inmate
in the
dormitory's bathroom. Upon Williams' turn to be strip searched,
Wil-
liams entered the bathroom with his hands inside his shorts. While
Williams still had his hands inside his shorts, he dropped a
syringe
cap onto the floor, ran toward a bathroom stall and dropped a
syringe
and a folded one hundred dollar bill onto the floor. Upon
retrieving
and unfolding the one hundred dollar bill, Correctional Officer
Pope
discovered a surgical glove containing nine small, clear plastic
bag-
gies of suspected narcotics. The substance in the baggies was later
confirmed to be .794 grams of heroin. Subsequently, Williams ran to
the water fountain area in the hallway outside the bathroom and
dropped an additional two hundred and thirty dollars in cash.

A jury subsequently convicted Williams of possession of heroin
with intent to distribute, see 21 U.S.C.§§ 841(a)(1) and (b)(1)(C),
and
of being a prisoner in possession of heroin, see 18 U.S.C. § 13;
Va.
Code Ann. § 53.1-203(5) (Michie 1994); Va. Code Ann. § 18.2-10
(Michie 1996). Subsequently, Williams filed a motion for a new
trial
based on newly discovered evidence. See F ED. R. CRIM. P. 33. Con-
cluding the newly discovered evidence would probably not result in
an acquittal at a retrial, the district court denied Williams'
motion.
Following its decision to depart downward from the applicable sen-
tencing range under the United States Sentencing Guidelines, the
dis-
trict court then sentenced Williams to sixty months' imprisonment
and five years of supervised release. Both parties noted a timely
appeal.

II.

On appeal, Williams first contends the government failed to present
sufficient evidence of an intent to distribute on his part,
mandating
reversal of his conviction for possessing heroin with the intent to
dis-
tribute. Specifically, he argues that the relatively small amount
of her-
oin for which he was convicted of possessing is consistent with
personal use, not an intent to distribute, and the government did
not

                                3
present any other evidence from which the jury could have inferred
an intent to distribute.

We must sustain a conviction if there is substantial evidence to
support it when the evidence and reasonable inferences to be drawn
therefrom are viewed in the light most favorable to the government.
See Glasser, 315 U.S. at 80; United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996), cert. denied, 117 S. Ct. 1087 (1997). "[I]n
the
context of a criminal action, 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." Burgos, 94 F.3d at 862. When reviewing the sufficiency of
the evidence, we must remember that it is "[t]he jury, not the
review-
ing court, [that] weighs the credibility of the evidence and
resolves
any conflicts in the evidence presented, and if the evidence
supports
different, reasonable interpretations, the jury decides which
interpre-
tation to believe." United States v. Murphy , 35 F.3d 143, 148 (4th
Cir.
1994) (citations omitted), cert. denied, 115 S. Ct. 954 (1995).

In order to convict a defendant of possession of heroin with intent
to distribute under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), the
govern-
ment must present sufficient proof of, among other things, the
defen-
dant's specific intent to distribute. See United States v. Fisher,
912
F.2d 728, 730 (4th Cir. 1990). While possession of a small amount
of drugs, standing alone, is an insufficient basis from which to
infer
an intent to distribute, if such possession is bolstered by other
evi-
dence probative of an intent to distribute, a jury can justifiably
infer
an intent to distribute. See id.; United States v. Delpit, 94 F.3d
1134,
1153 (8th Cir. 1996). The presence of large amounts of cash, the
pres-
ence of drug paraphernalia, firearms, and other evidence of drug
deal-
ing, and the manner in which the drugs are packaged are all factors
that can support an inference of an intent to distribute. See
Fisher, 912
F.2d at 730-31.
We need not decide whether possession of .794 grams of heroin by
itself is a sufficient basis from which a jury may infer an intent
to dis-
tribute, because the .794 grams of heroin coupled with the other
evi-
dence presented in this case clearly supports the jury's finding of
an
intent to distribute. Williams possessed heroin packaged in plastic
baggies. Such packaging is typical of the packaging used for the
retail
                                 4
sale of drugs. See Fisher, 912 F.2d 728, 731 ("Baggies and baggie
corners are well known tools of the narcotics distribution
trade."). The
three hundred and thirty dollars in cash found in Williams'
possession
is additional circumstantial evidence from which the jury could
have
inferred an intent to distribute. Such an amount of cash is
significant
when one considers, as Williams admitted at trial, that he was not
allowed to possess any money as an inmate at Lorton. Finally, the
government presented evidence that the baggies containing the
heroin
were found in a surgical glove wrapped in a one hundred dollar
bill,
suggesting a retail connection between the heroin and the cash.
Because the government presented sufficient evidence from which the
jury could have inferred Williams' intent to distribute, we affirm
his
conviction for possession of heroin with intent to distribute.

III.

Next, Williams argues the district court erred by denying his
motion for a new trial based on newly discovered evidence. See FED.
R. CRIM. P. 33. The newly discovered evidence consisted of an
affida-
vit by McCajah Harris (Harris), a fellow inmate, in which Harris
states that while standing next to Williams during the shakedown
search on July 4, 1994, he (Harris) dropped heroin on the ground to
avoid being caught with it on his person. According to Harris, this
was the same heroin that is the subject of Williams' convictions.
In
response to Williams' new trial motion, the government submitted an
investigative statement taken from Harris by an agent with the
Federal
Bureau of Investigation (FBI) in which Harris described the heroin
that he dropped during the shakedown as being packaged in two plas-
tic vials and weighing almost three grams. The government also sub-
mitted a transcript of Harris' testimony before a federal grand
jury in
which he similarly described the heroin.

A district court should only grant a motion for a new trial based
on
newly discovered evidence if: (1) the evidence is newly discovered;
(2) the court may infer diligence on the part of the movant in
discov-
ering the evidence from the facts alleged; (3) the evidence relied
upon
is not merely cumulative or impeaching; (4) the evidence is
material
to the issues involved; and (5) the evidence would probably result
in
acquittal at a new trial. See United States v. Singh, 54 F.3d 1182,
1190
(4th Cir. 1995). We review a district court's denial of a motion
for

                                 5
new trial based on newly      discovered   evidence   for   abuse   of
discretion.
See Singh, 54 F.3d at 1190.

Here, the district court concluded that although the motion met the
first four prongs, it should be denied because it failed to meet
the fifth
prong--the evidence would probably not result in an acquittal.
According to the district court, the evidence would probably not
result
in an acquittal because Harris identified heroin that was "in a
form . . .
substantially, drastically different than that of which [Williams]
was
accused and convicted of possessing." (J.A. 182).
We find no abuse of discretion. Harris obviously described heroin
very different in critical respects (packaging and amount) from the
heroin that was described by the two correctional officers at
trial. The
discrepancies between the two descriptions are simply not, as Wil-
liams characterizes them in his brief, "minor inconsistencies."
(Appel-
lant's Br. at 12). We agree with the district court that given the
drastic
differences in descriptions of the heroin, the newly discovered
evi-
dence would probably not have resulted in acquittal.
IV.

We now turn to the government's challenge to Williams' sentence.
At sentencing, the district court first determined that Williams
quali-
fied to be sentenced as a career offender, see U.S. SENTENCING
GUIDELINES MANUAL (USSG)§ 4B1.1, because: (1) he was at least 18
years old at the time he committed the instant offenses of
conviction;
(2) the instant offenses of conviction were controlled substance
offenses; and (3) Williams had two prior felony convictions for
crimes of violence. See USSG § 4B1.1; (J.A. 193-94, 203, 214).
Application of the Career Offender Guideline resulted in a total
offense level for Williams of thirty-two and a criminal history
cate-
gory of VI, producing a sentencing range of 210 to 262 months'
imprisonment. The district court next concluded that the Career
Offender Guideline substantially overstated Williams' criminal his-
tory and, if applied, would produce a sentence substantially
disparate
to the nature of his offenses. Believing these circumstances to
warrant
a downward departure in Williams' sentence from the Career
Offender Guideline, the district court sentenced Williams to sixty
months' imprisonment.

                        6
On appeal, the government challenges the district court's down-
ward departure on two grounds: (1) the district court erred by con-
cluding that application of the Career Offender Guideline
overstates
Williams' criminal history and would produce a sentence substan-
tially disparate to the nature of Williams' offenses; and (2) the
district
court failed to set forth on the record a principled justification
to sup-
port the extent of its departure as required by our circuit
precedent,
see United States v. Gary, 18 F.3d 1123, 1131 (4th Cir. 1994). Wil-
liams concedes that he qualifies to be sentenced as a career
offender,
but urges affirmance of the district court's downward departure
from
the Career Offender Guideline.
A district court must impose a sentence within the range that
results from a proper application of the Guidelines"unless the
court
finds that there exists an aggravating or mitigating circumstance
of a
kind, or to a degree, not adequately taken into consideration by
the
Sentencing Commission in formulating the guidelines that should
result in a sentence different from that described." 18 U.S.C.
§ 3553(b). After the district court sentenced Williams, the Supreme
Court decided Koon v. United States, 116 S. Ct. 2035 (1996), in
which the Court set forth the analysis that a sentencing court must
employ in determining whether it may depart from the applicable
guideline range.

Consistent with Koon, in United States v. Rybicki, 96 F.3d 754 (4th
Cir. 1996), we prescribed the following five step analysis for a
district
court to follow when deciding whether to depart from the applicable
guideline range. First, the district court must determine the
circum-
stances and consequences of the offense of conviction. See id. at
757.
Second, the district court must decide whether any of the circum-
stances or consequences of the offense of conviction appear
atypical,
such that they potentially take the case out of the applicable
guide-
line's heartland. See id. Third, having identified factors that may
potentially remove a case from the applicable guideline's
heartland,
the district court must determine whether the factor is a
forbidden,
encouraged, discouraged or unmentioned basis for departure. See id.
Fourth, if a factor is encouraged, the district court must
determine
whether the applicable guideline already adequately takes the
factor
into account, and if it does, then the district court may not rely
upon
it. See id. at 757-58. The district court may rely on a discouraged
fac-

                                 7
tor if it determines the factor to be present to an exceptional
degree
or in some other way that makes the case different from the
ordinary
case where the factor is present. See id. at 758. The district
court may
rely on an unmentioned factor if the district court determines that
the
structure and theory of both the relevant individual guideline(s)
and
the Guidelines as a whole take the case out of the applicable
guide-
line's heartland. See id. And finally, fifth, the district court
must con-
sider whether the factors appropriately classified and considered
take
the case out of the applicable guideline's heartland, such that a
depar-
ture from the specified sentencing range of the applicable
guideline
is warranted. See id.
Once the district court has determined that a departure from the
specified sentencing range is warranted, the next step is for the
district
court to determine the extent of the warranted departure. See Gary,
18
F.3d at 1131. To aid appellate review, the district court must set
forth
on the record some form of principled justification for the extent
of
its departure. See id. We have approved of at least two methods by
which a district court may justify the extent of its departure. A
district
court may analogize to a guideline that most closely approximates
the
defendant's conduct, see id., or it may use the level-by-level
approach
developed in United States v. Rusher, 966 F.2d 868, 884 (4th Cir.
1992). When departing downward under the level-by-level approach,
the district court should move to successively lower offense levels
or
lower criminal history categories only upon a finding that the
prior
offense level or criminal history category does not provide a
sentence
that adequately reflects the stated reason(s) for departure. See
id.;
United States v. Harrison, 58 F.3d 115, 117-18 (4th Cir. 1995).
Because the district court did not have the benefit of Koon, it did
not conduct a Koon-type analysis before departing downward in Wil-
liams' sentence. Furthermore, the district court did not set forth
a
principled justification for the extent of its departure as
required by
our circuit precedent. See Gary, 18 F.3d at 1131. Indeed, the
district
court did not even attempt to set forth such a justification. The
record
merely contains the district court's bare conclusion that the
Career
Offender Guideline substantially overstated Williams' criminal his-
tory and, if applied, would produce a sentence substantially
disparate
to the nature of his offenses. Under these circumstances, it is
appro-
priate to vacate Williams' sentence and remand for resentencing. If

                                 8
the district court determines on resentencing that a downward
depar-
ture is still warranted, it should conduct a Koon-type analysis as
out-
lined in Rybicki, 96 F.3d at 757-58, and offer a principled
justification
for the extent of its departure.

V.

In conclusion, we affirm Williams' convictions, but vacate his sen-
tence and remand for resentencing consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART
AND REMANDED FOR RESENTENCING

                                 9
