                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-5103



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


MARTEZ LAMONT SHERROD,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (CR-04-75)


Submitted:   January 5, 2007                 Decided:   January 19, 2007


Before WILKINS, Chief Judge, and WILLIAMS and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kelly L. Greene, STUBBS & PERDUE, P.A., New Bern, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Martez Lamont Sherrod appeals his convictions and sentence for

various   drug   offenses.        He    argues   that   the   evidence    was

insufficient to support his convictions and that his sentence was

unconstitutionally enhanced to a life sentence.            For the reasons

that follow, we affirm.



                                       I.

     On   December   5,   2002,   Investigator     Bruce   Groccia   of   the

Greenville Police Department conducted a narcotics investigation at

the Jameson Inn in Greenville, North Carolina.1                Investigator

Groccia had received information that controlled substances were

being sold out of Room 102 of the Jameson Inn, so he went to the

hotel to conduct surveillance.              Investigator Groccia observed

multiple individuals drive into the parking lot, park, walk into

Room 102, leave minutes later, and drive away.             He also observed

occasions in which a vehicle drove into the parking lot and a man

came out of Room 102 and entered the vehicle; a short time later,

the man exited the vehicle and returned to Room 102, and the

vehicle drove away.       Another man engaged in what looked like

counter-surveillance: he walked to different parts of the building



     1
      Because Sherrod challenges the sufficiency of the evidence
supporting his conviction, we view the facts in the light most
favorable to the Government. United States v. Pierce, 409 F.3d
228, 230 (4th Cir. 2005).

                                       2
and   looked      around    the     corners.    Based    on   his    observations,

Investigator Groccia requested and obtained a search warrant for

Room 102.

      Greenville Police Department Investigators Rose Edmonds and

Antonio Braxton, along with other officers, executed the warrant

and found ten to twelve individuals inside the hotel room.                  During

the search of the room, the officers took keys to a burgundy Honda

and $6,200 from Sherrod.

      Outside      the     hotel,    Investigator    Groccia    focused    on    the

vehicles associated with Room 102. When a police canine alerted to

the burgundy Honda, the officers used Sherrod’s key to enter the

Honda.    The canine immediately alerted to the glove box, in which

the officers found crack cocaine.               Inside the car, the officers

found registration and inspection paperwork listing Sherrod as the

car’s    owner.      The     officers    arrested    Sherrod    for    trafficking

cocaine.

      On March 26, 2003, Investigator Edmonds and Investigator

Braxton were driving northbound on Memorial Drive in Greenville

when they met Sherrod driving southbound.               When Sherrod passed the

officers, he shielded his face with his left arm.                     Investigator

Edmonds recognized Sherrod and made a U-turn on Memorial Drive to

follow     him.      Sherrod        attempted   to   elude     the    officers    by

accelerating.        In response, Investigator Edmonds activated her

car’s blue lights and siren.            Sherrod turned onto another street,


                                          3
where the officers observed him throw something white out of the

car window.     Sherrod then drove off the road into a grassy area

where Investigator Groccia, who had been working nearby at an off-

duty security job, helped the other officers stop Sherrod by

blocking his car.         Investigator Braxton then walked back to the

area where the officers had observed Sherrod throw what appeared to

be a white bag.      Two or three minutes later, he returned with the

white bag, which contained four plastic bags of cocaine.                          The

officers then arrested Sherrod for a second time.

     On October 27, 2004, a federal grand jury indicted Sherrod for

conspiracy to distribute more than 50 grams of cocaine base (crack

cocaine) and more than 500 grams of cocaine (Count One), possession

with intent to distribute of more than 50 grams of crack cocaine on

December   6,   2002   (Count   Two),       and   possession   with      intent    to

distribute cocaine on March 26, 2003 (Count Three).                 Jeremiah Lee

Person and Vernon Lee Bryant were also charged in the conspiracy

count.

     Nearly six months before trial, and in accordance with 21

U.S.C.A. § 851 (West 1999), the Government filed notice of its

intent   to   seek   an    enhanced    penalty     pursuant    to   21    U.S.C.A.

§ 841(b)(1) (West 1999 & Supp. 2006) because Sherrod had been

convicted of two prior drug-related felonies.

     Bryant and Person pleaded guilty to the conspiracy count and

testified against Sherrod.            Bryant testified that he had known


                                        4
Sherrod since the 1980s and that in 2003 he began purchasing crack

cocaine and powder cocaine from Sherrod.            Bryant purchased seven

grams of crack cocaine daily for a couple of weeks.                   He then

purchased powder cocaine every other day for several weeks, first

in   fourteen   gram    quantities   and    later   in   twenty-eight     gram

quantities.

      Person, who was present in the Jameson Inn room when the

police executed the search warrant, had known Sherrod since 1994

and described himself as a “good friend” of Sherrod.                 For a few

months in 1999, he bought crack cocaine and powder cocaine weekly;

he bought crack cocaine from Sherrod in 62 and 125 gram quantities

and powder cocaine in quantities between 125 grams to 500 grams.

In   2001,   Person    resumed   buying    powder   cocaine   from    Sherrod,

purchasing 125 and 250 gram quantities weekly or biweekly.              Person

estimated that he had purchased between three to four kilograms of

powder cocaine from Sherrod.         Person testified that 236 grams of

crack cocaine that undercover law enforcement officers bought from

him came from Sherrod.

      After the Government presented its case-in-chief, Sherrod

moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29.

The district court denied Sherrod’s motion from the bench. Sherrod

then introduced into evidence Investigator Groccia’s written notes

detailing a statement by Vernon Bryant that he did not buy drugs

from Sherrod.


                                      5
     The jury found Sherrod guilty of conspiracy to possess with

intent to distribute more than 50 grams of crack cocaine and

between 500 grams to 5 kilograms of cocaine (Count 1), and guilty

of possession with intent to distribute more than 50 grams of crack

cocaine   (Count   2).     The   jury       also   found    Sherrod    guilty   of

possession with intent to distribute cocaine (Count 3).                  Pursuant

to 21 U.S.C.A. § 841(b)(1), the district court imposed statutorily

mandated sentences    of life imprisonment for counts 1 and 2, to run

concurrently.      The   district   court      also   imposed      a   concurrent

sentence of 360 months’ imprisonment for count 3.



                                    II.

     “We review de novo a district court’s denial of a motion, made

pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for

judgment of acquittal.”      United States v. Smith, 451 F.3d 209, 216

(4th Cir. 2006).         In evaluating the sufficiency of the evidence,

we keep in mind that “a jury verdict ‘must be sustained if there is

substantial   evidence,    taking   the       view   most    favorable    to    the

Government, to support it.’” United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc) (quoting Glasser v. United States,

315 U.S. 60, 80 (1942)).         In the context of a criminal trial,

“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.   “In applying


                                        6
this standard of review, we must remain cognizant of the fact that

the jury, not the reviewing court, 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 interpretation to believe.”               Id. (internal

quotation marks omitted).

     Sherrod contends that several of the witnesses that testified

against him on the conspiracy charge were not credible because they

pleaded   guilty   to   the    conspiracy   count   and   were    facing     life

sentences   unless      they    obtained    a   sentencing       reduction    by

cooperating with the Government. We reject this contention because

“[w]e do not review the credibility of the witnesses when we

evaluate whether there existed sufficient evidence to support a

conviction.”   United States v. Wilson, 115 F.3d 1185, 1190 (4th

Cir. 1997). The jury weighed the credibility of the witnesses that

testified against Sherrod and chose to believe them.

     Sherrod also contends that the evidence was insufficient to

support his convictions for possession of drugs because (1) there

was evidence that the crack cocaine found in Sherrod’s Honda at the

Jameson Inn may have belonged to someone else, and (2) Investigator

Braxton was possibly biased against Sherrod, making his discovery

of the white bag containing cocaine unreliable.2             We reject this


     2
      Sherrod contends that Investigator Braxton was possibly
biased because there had been a complaint with the police
department alleging that he was involved in drug activities with

                                      7
argument because the jury makes credibility determinations and

decides which interpretation of the evidence to believe.    Burgos,

94 F.3d at 862.   We therefore affirm Sherrod’s convictions.



                                 III.

     Sherrod argues that § 851 is unconstitutional in the wake of

United States v. Booker, 543 U.S. 220 (2005).    In United States v.

Robinson, 404 F.3d 850 (4th Cir. 2005), we stated that “Booker did

nothing to alter the rule that judges cannot depart below a

statutorily provided minimum sentence,” id. at 862, even when the

statutory minimum sentence is essentially a life sentence, see id.

(vacating a sentence of 384 months’ imprisonment because the

statutory minimum sentence was 2184 months’ imprisonment).     This

rule applies here.   Because Sherrod’s life sentence represented a

statutorily provided minimum sentence, the district court had no

discretion to depart below it. There is no Sixth Amendment problem

because the life sentence is based on facts found by the jury (drug

quantity) and the fact that Sherrod had two prior drug felony

convictions, a fact that need not be found by the jury.         See

Booker, 543 U.S. at 244.    Accordingly, we reject Sherrod’s Booker-

based challenge to § 851.




Sherrod. Prior to trial, Investigator Braxton was investigated and
cleared of these allegations.

                                  8
       Sherrod also argues that his sentence was unconstitutionally

enhanced to a life sentence because he refused to plead guilty.

(Appellant’s Br. at 26 (“[T]he only reason that [Sherrod] was

enhanced to a life sentence, and did not receive a substantially

less sentence within the 360-life range as was proscribed by the

United States Sentencing Guidelines . . . is because he refused to

plead guilty.”).)      As the Government correctly notes, the facts do

not    support   Sherrod’s    assertion.     Section     851     requires   the

Government to file notice of its intent to seek an enhanced penalty

for prior convictions “before trial, or before entry of a plea of

guilty.” 21 U.S.C.A. § 851(a)(1) (emphases added). The Government

complied with this requirement, filing its notice on January 24,

2005, which was well-before Sherrod pleaded not guilty on April 4,

2005.    In fact, because the Government’s § 851 notice was filed

before he entered a plea, Sherrod remarked at his sentencing

hearing that this presented him with the choice to “plead to life

or    [be]   found   guilty   of   life.”   (J.A.   at   419.)      Thus,   the

Government’s decision to seek an enhanced sentence was unrelated to

Sherrod’s choice of pleas.



                                      IV.

       For the foregoing reasons, we affirm Sherrod’s convictions and

sentence.      We dispense with oral argument because the facts and




                                       9
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                         AFFIRMED




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