                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-4710



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

           versus


LARRY ALLEN AIKENS,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-03-75)


Argued:   September 19, 2005                 Decided:   November 9, 2005


Before TRAXLER, KING, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion. Judge Gregory wrote a separate opinion concurring
in part and dissenting in part.


ARGUED: Stanford Kent Clontz, Asheville, North Carolina, for
Appellant. Thomas Richard Ascik, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Larry Allen Aikens appeals his convictions in the Western

District of North Carolina on drug conspiracy and firearms charges,

contending     that   the    evidence   supporting   those    convictions    is

insufficient.        He also asserts that he was sentenced beyond the

applicable Guidelines range on two “moonshining” offenses to which

he   had   pleaded    guilty.     As    explained    below,   we   affirm   his

conviction for drug conspiracy and conclude that any error in his

sentence for moonshining was harmless.                On the basis of the

Government’s admission of a failure of its proof on the firearms

charge, we vacate that conviction and remand for dismissal of the

underlying charge.



                                        I.

       On October 7, 2003, the grand jury returned a one-count

indictment against Larry Allen Aikens (“Larry” or “Larry Aikens”)

and his son, Lewis Darrell Aikens (“Lewis” or “Lewis Aikens”),

charging them with manufacturing and possessing with intent to

distribute more than 100 marijuana plants, and aiding and abetting

each   other    in    this   offense,    in   contravention   of   21   U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2.          Subsequently, on December 2, 2003,

the grand jury returned a superseding indictment, against Larry

only, charging him with four offenses:           (1) conspiracy with Lewis

and others to manufacture and possess with intent to distribute


                                        2
more than 100 marijuana plants, in contravention of 21 U.S.C.

§ 846; (2) possession of thirty-one firearms by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1); (3) possession of an

unregistered distilling apparatus, in contravention of 26 U.S.C.

§ 5601(a)(1); and (4) unlawful production of distilled spirits, in

violation of 26 U.S.C. § 5601(a)(8). Both Larry’s and Lewis’s drug

offenses were alleged to have involved the same marijuana plants,

and to have occurred between approximately July 2003 and October 6,

2003.

     The joint trial of Larry (on the charges lodged in the

superseding indictment) and Lewis (on the charge in the original

indictment) began on January 5, 2004.     Prior to jury selection,

Larry pleaded guilty to the third and fourth counts, i.e., the

moonshining offenses.   On the drug conspiracy and firearms charges

against Larry, as well as the drug manufacturing and possession

count against Lewis, the prosecution adduced the following evidence

at trial.1

     In late August 2003, officers of the United States Department

of Agriculture Forest Service were alerted that a pilot with the

North Carolina State Bureau of Investigation had spotted some

suspicious cultivated sites during a flyover of the Big Knob area


     1
      Because Larry Aikens challenges the sufficiency of       the
evidence supporting his convictions, we recite and review      the
evidence in the light most favorable to the prosecution.       See
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)      (en
banc).

                                 3
of the Pisgah National Forest in western North Carolina.                    In early

September 2003, Forest Service officers found and began monitoring

three marijuana patches in that area, within Madison County, North

Carolina. The patches were accessible from the Hickory Log Branch,

a trail that had once been maintained by the Forest Service.                    The

closest patch to the trail was several hundred feet away, and

tracks indicated that the trail had recently been used by an all-

terrain vehicle (“ATV”).

     On October 3, 2003, Forest Service officers observed that the

plants in the marijuana patches were heavily budded and ready for

harvesting.     A     decision   was       then    made     to    begin    constant

surveillance of the patches.           At about eleven o’clock on the

morning of October 5, 2003, two teams of officers entered the

general area of the patches from different directions.                    Along the

way, one of the teams, including Agent Harold Young, Jr., surprised

what was believed to be a person or animal, causing the person or

animal to flee through the woods, or to be “flushed” from the area.

Subsequently, upon arriving at each of the three marijuana patches,

the officers discovered that the plants had been harvested since

their previous visit two days earlier.               The officers also found

fresh bootprints belonging to two different persons at the three

patches.      These    bootprints      were       tracked    to    a      previously

undiscovered fourth marijuana patch sheltered by large poplar

trees.     About 250 feet from that patch (and approximately a


                                       4
quarter- to a half-mile downhill from the other three marijuana

patches), one of the officers, Claude Stribling, discovered an ATV

parked on the nearby Hickory Log Branch.    Stribling followed the

fresh tracks of the ATV, ultimately determining that the tracks

originated on Larry Aikens’s property, near his residence (about

two miles downhill from where the parked ATV was found).

     Meanwhile, other officers monitored the ATV, in the event

someone came to retrieve it.    Later, Agent Young led officers to

the spot where he earlier had “flushed” a person or animal, finding

four duffel bags full of newly harvested marijuana nearby.   One of

the bags appeared to be a United States Army bag, and it was marked

with Lewis Aikens’s name and Social Security number.

     Additional officers were then brought onto the scene, and

surveillance of the ATV continued through the night. At about nine

o’clock the following morning, October 6, 2003, an officer hidden

alone at the site, Michael Tipton, spotted Larry and Lewis walking

from the direction of the ATV tracks and approaching the ATV.

Tipton overheard one of the men say to the other, “What do you

think?”   The other man replied, “I don’t see them.   Let’s go on up

the trail.”   Larry and Lewis then continued walking up the Hickory

Log Branch, which led to an access point for the upper marijuana

patches and the site where the duffel bags of freshly harvested

marijuana had been dropped.    They walked for one to two minutes,




                                 5
covering about 200 feet, before they met another officer, who

initiated arrest procedures.

      Shortly after the arrests, the officers, including Agent Jenny

Davis, asked Larry and Lewis whether the abandoned ATV belonged to

either of them.        First Larry, and then Lewis, responded “no.”

Davis had also questioned Larry and Lewis about what they were

doing   in   the   area.    Larry      initially    indicated,       with   Lewis’s

agreement, that they were “just walking.”                Some twenty or thirty

minutes later, as officers were leading Larry and Lewis from the

area, Larry initiated a conversation about bear hunting, and stated

that he and Lewis had been walking and tracking bears.

      Also on the day of the arrests, officers observed that Lewis

had   numerous     wounds   on   his    body,   consistent      with   cuts   from

greenbrier and blackberry briers found in the woods surrounding the

marijuana patches. And officers found evidence indicating that the

abandoned    ATV    belonged     to    Lewis    —   a   point   on   which    there

ultimately was no dispute.

      On October 7, 2003, the day following the arrests, search

warrants were executed on the respective homes of Larry and Lewis,

which were located less than a half-mile apart.                        In Larry’s

residence and elsewhere on his property, officers found and seized,

inter alia, the following:            nine revolvers, sixteen rifles, four

shotguns, and two muzzle loaders; fourteen bags of marijuana;

several sets of scales of the type used by illegal drug dealers,


                                         6
including    one   set   containing   marijuana   residue;   and   numerous

plastic baggies, also of the type used by drug dealers.2               From

Lewis’s property, officers recovered electronic and mechanical

weighing scales, planting trays, marijuana seeds, fertilizer, and

several rolls of medical tape matching that used to stake plants in

the marijuana patches found in the Pisgah National Forest.

     At the close of the prosecution’s case-in-chief on January 7,

2004, Larry Aikens moved pursuant to Rule 29 of the Federal Rules

of Criminal Procedure for a judgment of acquittal on the drug

conspiracy and firearms counts. See Fed. R. Crim. P. 29(a) (“After

the government closes its evidence or after the close of all the

evidence, the court on the defendant’s motion must enter a judgment

of acquittal of any offense for which the evidence is insufficient

to sustain a conviction.”).      Larry contended that the Government’s

evidence of a drug conspiracy was insufficient, and he made a

separate argument (not pursued on appeal) on the firearms charge.

The court denied the motion.

     Subsequently, on January 8, 2004, at the close of all of the

evidence and before the jury retired, Larry renewed his Rule 29

motion.     In addition to his previous contentions, Larry asserted

that the firearms count should be dismissed for “lack of any

evidence proving a nexus between these firearms and interstate


     2
      During the search of Larry’s property, officers also found
and seized evidence supporting the two moonshining offenses to
which he pleaded guilty.

                                      7
commerce.”    See J.A. 633.3      The Government responded that, “given

the fact that the jury has heard evidence of nine revolvers,

sixteen rifles, four shotguns and two muzzle loaders, that it would

be a question for the jury to determine based upon their reason and

common sense as to whether any one of those guns would have in any

way traveled in interstate commerce.”               Id. at 634.   The court then

denied Larry’s renewed Rule 29 motion.

     Later on that same day, the jury returned a verdict of guilty

against Larry Aikens on the drug conspiracy and firearms charges,

and against his son Lewis on the drug manufacturing and possession

count.   After the jury was excused, Larry again renewed his Rule 29

motion, which the court denied.         See Fed. R. Crim. P. 29(c)(1)-(2)

(providing    that   defendant    may       renew    motion   for    judgment   of

acquittal within seven days after guilty verdict, and court may

then set aside verdict and enter acquittal).

     On August 20, 2004, the court sentenced Larry Aikens to 120

months   of   imprisonment   on    the      drug     conspiracy     and   firearms

convictions, and to sixty months on each of the two moonshining

convictions, with all prison terms to be served concurrently.

Larry has filed a timely notice of appeal.                He contends that the

evidence is insufficient to sustain his convictions on the drug

conspiracy and firearms charges and, thus, that the court erred in



     3
      Citations herein to “J.A.   ” refer to the contents of the
Joint Appendix filed by the parties in this proceeding.

                                        8
denying his renewed Rule 29 motion.          In the event that we vacate

those   convictions,   he   seeks   resentencing     on   his   moonshining

offenses, based on his assertion that the sixty-month prison terms

imposed by the court exceeded the applicable Guidelines range.           He

concedes that, if his convictions (particularly his conviction for

drug conspiracy) stand, any sentencing error is harmless and

resentencing is not necessary.            We address, in turn, Larry’s

assertions with respect to, first, the sufficiency of the evidence

and, second, his sentence.



                                    II.

                                    A.

     We review de novo the denial of a Rule 29 motion for a

judgment of acquittal.      United States v. Ryan-Webster, 353 F.3d

353, 359 (4th Cir. 2003).      We must sustain a jury verdict “‘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)).           We have defined “substantial

evidence” as “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.   And we “remain

cognizant of the fact that the jury, not the reviewing court,

weighs the credibility of the evidence and resolves any conflicts


                                     9
in the evidence presented.”            Id. (internal quotation marks and

alteration omitted).

                                        1.

       On the drug conspiracy charge against Larry Aikens, the court

instructed the jury that the prosecution was required to prove the

following:        that   between    July   2003   and   October    6,     2003,   an

agreement was formed between two or more persons to manufacture and

possess    with    intent    to    distribute     a   detectable       quantity   of

marijuana; that Larry knew of the conspiracy; and that he knowingly

and intentionally became a member thereof.                 See J.A. 652; cf.

Burgos, 94 F.3d at 857 (“To prove conspiracy to possess cocaine

base with intent to distribute, the Government must establish that:

(1) an agreement to possess cocaine with intent to distribute

existed between two or more persons; (2) the defendant knew of the

conspiracy; and (3) the defendant knowingly and voluntarily became

a   part   of   this     conspiracy.”).4        Importantly,      “a    conspiracy

generally is proved by circumstantial evidence and the context in

which the circumstantial evidence is adduced.”              Burgos, 94 F.3d at

857.




       4
      The district court also instructed the jury that, if it found
Larry Aikens to have been involved in a drug conspiracy, it was
then to consider whether the conspiracy involved more than 100
marijuana plants, and whether “the involvement of the conspiracy
with this amount of marijuana was in furtherance of the conspiracy
and was either known to the defendant Larry Allen Aikens or was
reasonably foreseeable to him.” J.A. 652-53.

                                        10
     Viewed in the light most favorable to the Government, the

evidence presented to the jury in this matter permits a finding

that, sometime between October 3 and the morning of October 5,

2003, Lewis Aikens and some other person harvested many of the

plants in the marijuana patches in the Pisgah National Forest.

During that time period, Lewis’s ATV was driven from Larry Aikens’s

property up the Hickory Log Branch, and parked near the lowermost

patch.   At about 11 o’clock on the morning of October 5, 2003,

Lewis was surprised by Forest Service officers.          In the course of

being “flushed” by the officers, Lewis dropped four duffel bags of

freshly cut marijuana and fled through the woods, sustaining

multiple cuts along the way and abandoning the ATV.         The following

morning, on October 6, 2003, Larry (himself a marijuana dealer, as

evidenced by the bagged marijuana, scales, baggies, and firearms

found on his property) accompanied Lewis to the area of the

marijuana patches.     Larry and Lewis had reached the parked ATV,

where one of them was overheard stating, “I don’t see them,”

indicating   that   they   were   looking   for   the   officers   who   had

“flushed” Lewis the previous day.           The speaker then suggested,

“Let’s go on up the trail,” showing that the ATV was not the

intended final destination point.        Larry and Lewis then continued

walking up the trail, toward an access point for the site of the

abandoned duffel bags of marijuana, until they were stopped by an

officer and arrested. Larry and then Lewis soon thereafter falsely


                                    11
denied that either one of them owned the ATV.5               And Larry gave two

different excuses as to why he and Lewis had been trekking through

the area of the marijuana patches that day — first, that they were

“just walking,” and, second, that they were walking and tracking

bears.

      Larry   Aikens,    in   this    appeal,   concedes     that   there   is    a

significant amount of circumstantial evidence linking his son Lewis

to   the   marijuana    patches,     but   contends   that    the   evidence     is

insufficient to sustain his own conviction for drug conspiracy. In

support of this contention, Larry asserts that the evidence fails

to establish, inter alia, that he had ever been physically present

in any of the marijuana patches, or that the marijuana found on his

property had any relation to the marijuana being grown in those

patches.    He also insists that a reasonable fact finder could only

conclude that, in accompanying Lewis to the area of the marijuana

patches on the morning of their arrests, his purpose was innocent:

to simply help Lewis retrieve his ATV, just as any father would

help his son.

      5
      Our good dissenting colleague asserts that “Larry Aikens
denied that the ATV belonged to him” (rather than to him or his son
Lewis), see post at 19-20, and therefore concludes that Larry’s
statement was true, see id. at 26.      In our view, however, the
record does not support this conclusion. Agent Davis testified
that officers asked Larry, along with Lewis, whether the ATV
“belonged to either one of them.”      J.A. 163 (emphasis added).
According to Davis, “Larry was the first one to indicate. He said
no, and he shook his head and put it down.” Id. In other words,
Larry stated and indicated that neither he nor Lewis owned the ATV
— an assertion that was patently false.

                                       12
     Unfortunately for Larry, however, “[c]ircumstantial evidence

sufficient to support a conspiracy conviction need not exclude

every reasonable hypothesis of innocence, provided the summation of

the evidence permits a conclusion of guilt beyond a reasonable

doubt.”   Burgos, 94 F.3d at 858.    And “a variety of conduct,” apart

from personally manufacturing or possessing the drugs in issue,

“can constitute participation in a conspiracy sufficient to sustain

a conviction.”    Id. at 859 (recognizing “that participation may

assume a myriad of . . . forms, such as supplying firearms or

purchasing money orders for coconspirators or permitting them to

store narcotics and other contraband in one’s home, or purchasing

plane tickets for coconspirators” (internal citations omitted)).

     Here, an agreement between Larry and Lewis to violate the

federal drug laws is sufficiently established by evidence that

Lewis was permitted by Larry to use his property to access the

Hickory Log Branch leading to the area of the marijuana patches in

the National Forest, and by evidence that Larry accompanied Lewis

to that area on the morning of October 6, 2003, to retrieve the ATV

and duffel bags of freshly harvested marijuana that Lewis had

abandoned there the previous day. Indeed, a reasonable fact finder

could disregard the theory that Larry was simply helping Lewis

retrieve the ATV, because once Larry and Lewis reached the ATV,

they continued walking further into the National Forest.




                                    13
       Moreover, Larry’s knowledge of the conspiracy, as well as his

knowing     and   voluntary    involvement     in   it,   are   sufficiently

established by evidence of Larry’s conduct and guilty conscience.

This evidence includes the following: that Larry was watching with

Lewis for the officers who had earlier “flushed” Lewis from the

area; that Larry and Lewis passed the ATV and walked toward an

access point for the site where the duffel bags of marijuana had

been dropped; that Larry falsely denied that he or Lewis owned the

abandoned ATV; that Larry gave contradictory excuses about why he

and Lewis were on their trek; and that Larry had not innocently

stumbled into a marijuana cultivation scheme, as he himself was a

marijuana dealer.       Accordingly, the district court did not err in

denying Larry’s multiple requests for judgment of acquittal with

respect to the drug conspiracy charge, and we affirm his conviction

on that count.

                                     2.

       As for the firearms offense, the court instructed the jury

that the prosecution was required to prove the following: that, as

of October 6, 2003, Larry Aikens previously had been convicted of

a crime punishable by a term of imprisonment exceeding one year;

that   he   knowingly    and   intentionally    possessed   the   thirty-one

firearms identified in the indictment; and that this possession was

in or affecting commerce, in that the firearms had been shipped and

transported in interstate or foreign commerce.            See J.A. 658; see


                                     14
also United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en

banc).       Larry contends that the Government did not introduce any

evidence that the firearms had travelled in interstate or foreign

commerce.

       In order to prove the requisite nexus to interstate commerce,

the   prosecution     was     obliged   to   adduce   evidence   showing,    for

example, that one of the firearms at issue was possessed by Larry

in North Carolina but manufactured in another state.                 See United

States v. Crump, 120 F.3d 462, 466 & n.2 (4th Cir. 1997).                Instead,

the Government contended at trial that the jury should be allowed

to    rely    on   “reason    and   common   sense”   in    making   a   factual

determination on the interstate commerce element of the firearms

charge. It concedes on appeal, however, that it “did not introduce

evidence to prove the connection of [Larry] Aikens’ firearms to

interstate commerce,” and that the firearms count thus “suffered a

failure of proof.”           Appellee’s Br. at 22.         Accordingly, we are

constrained to vacate Larry’s conviction on the firearms count and

remand for its dismissal.



                                        B.

       Finally, Larry Aikens asserts that the sixty-month prison term

imposed by the district court on each of the moonshining counts

exceeds the applicable Guidelines range, which he contends is ten

to sixteen months of imprisonment for those combined offenses.


                                        15
Larry acknowledges, however, that the prison terms for moonshining

are to be served concurrently with the longer prison term imposed

for drug conspiracy, i.e., the mandatory statutory minimum of 120

months of imprisonment.    See 21 U.S.C. § 841(b)(1)(B).     Larry

therefore concedes that, if his conviction for drug conspiracy

stands, resentencing on the moonshining counts is unnecessary.

Because we have affirmed his drug conspiracy conviction, we agree

that a sentencing error on the moonshining offenses, if any, is

rendered harmless.



                               III.

     Pursuant to the foregoing, we affirm Larry Aikens’s conviction

for drug conspiracy and conclude that any error in his sentence for

moonshining was harmless. We vacate his conviction on the firearms

count and remand for its dismissal.



                                                  AFFIRMED IN PART,
                                      VACATED IN PART, AND REMANDED




                                16
GREGORY, Circuit Judge, concurring in part and dissenting in part:

     I respectfully dissent from the majority’s decision to affirm

the drug conspiracy conviction against Larry Allen Aikens (“Larry

Aikens”), as set forth in Section IIA.1.     The Government admits

that Larry Aikens was only charged with a plantation conspiracy to

manufacture and possess with intent to distribute 100 marijuana

plants cultivated in the Pisgah National Forest (“Forest”).1   Yet

the record fails to show any evidence, direct or circumstantial,

supporting the existence of an agreement between Larry Aikens and

Lewis Darrell Aikens (“Lewis Aikens”) regarding the cultivation of

marijuana in the Forest.   Because, in my view, the drug conspiracy

conviction impermissibly relies on numerous inferential leaps and

conflates several uncharged conspiracy theories, the conviction

cannot stand.   For this reason, I also do not view the sentencing

errors as harmless and therefore dissent from Section IIB.       I

otherwise concur in the majority’s conclusion in Section IIA.2 to

vacate the firearms conviction.



                                  I.

     On September 3, 2003, United States Forest Service officers

discovered three marijuana cultivation sites located in the Forest

in the western region of North Carolina.     Officer Claude Wilton


     1
      I use the term “plantation” to encompass any acts related to
planting, cultivating, monitoring, and harvesting the marijuana
plants in the four cultivation sites located in the Forest.

                                  17
Stribling noted that the sites had similar sizes, terraces, and

cultivation techniques; they were also linked by a faint trail. On

September 10, 2003, Officer Stribling further observed that four-

wheeler tracks led from a trail called the Hickory Log Branch

(“Hickory Log Branch trail”) to a point within 300 yards of the

marijuana cultivation sites.

        On October 5, 2003, four officers (in teams of two) entered

the area of the marijuana cultivation sites at approximately 11:00

a.m. that morning.           Agent Harold Young, Jr. radioed to Officer

Stribling and Agent Jenny Davis that he had “flushed somebody or

someone, a bear, or either someone.”              J.A. 151.        Agent Young

radioed again to inform the officers that “he had found a human

boot print, and he thought that what he had flushed was possibly

human activity.”       Id.    There was no indication that more than one

person had been flushed out.

     Officer Stribling and Agent Davis approached the uppermost 50-

plant    cultivation    site    and   noticed   that   it   had   been   freshly

harvested since their prior visit.          Upon discovering two distinct

sets of footprints, Officer Stribling began to track them from the

site down to a fourth, undiscovered marijuana cultivation site,

which appeared consistent with the three other sites.                      While

surveying the scene, Officer Stribling noticed a red Honda all-

terrain vehicle (“ATV”) abandoned nearby as well as fresh four-

wheeler tracks. He testified that the “the trimming had been done,


                                       18
it looked like, that day.”      J.A. 50.    The tracks led down the

Hickory Log Branch trail and appeared to have originated from Larry

Aikens’s house.

       Meanwhile, the other officers decided to investigate the area

from which Agent Young had apparently “flushed” out human activity.

They headed up the trail towards the uppermost cultivation sites

and found four duffel bags filled with freshly harvested marijuana.

One of the bags was labeled “Aikens, Lewis D.” with his Social

Security number.    The officers then set up surveillance near the

ATV.

       By 9:00 a.m. the next morning, Officer Michael Tipton was by

himself continuing surveillance near the ATV.     Officer Tipton saw

Larry Aikens and Lewis Aikens approach the ATV.        One of them said

to the other, “What do you think?”         J.A. 255.     The other one

responded, “I don’t see them.     Let’s go on up the trail.”      J.A.

256, 276.     Larry Aikens walked upward on the trail, while Lewis

Aikens remained behind, inspecting the ATV.     Both Larry Aikens and

Lewis Aikens then walked over to where Agent Larry Fisher was

positioned.    Upon the arrival of Agent Davis and other officers at

that location, the officers handcuffed and searched both men.      The

officers discovered an ATV key in Lewis Aikens’s pocket and an ATV

key in Larry Aikens’s pocket.

       Lewis Aikens told Officer Tipton that the ATV did not belong

to him.     Similarly, Larry Aikens denied that the ATV belonged to


                                 19
him.    Larry Aikens also told Agent Davis that they were just

walking, a story which Lewis Aikens repeated.                  While the officers

were leading both men out of the area on the trail, Larry Aikens

struck up a conversation about bear hunting.                   At the same time,

Officer Fisher was able to match Lewis Aikens’s key with the ATV;

Larry Aikens’s key did not fit.             Moreover, the officers seized the

boots of both Aikenses and later compared the samples to a plaster

cast of a bootprint found near the ATV; Agent Davis did not send

the boots of Larry Aikens for further analysis because she believed

that they did not match the bootprint.

       On October 7, 2003, the officers obtained search warrants for

the residences of Larry Aikens and Lewis Aikens.                       The officers

noted that most of the evidence “was located in [Larry Aikens’s]

garage or in abandoned vehicles or in sealed barrels hidden behind

his residence or hidden behind the still that we located.”                       J.A.

171.    In the woods above Larry Aikens’s house, the officers found

a black barrel filled with five white plastic bags containing

marijuana, one black bag containing marijuana, a triple-beam scale

with   marijuana     residue    on    it,     and   numerous     plastic      baggies.

Immediately adjacent to the black barrel was a 55-gallon blue

barrel filled with eight plastic bags of marijuana.                    Inside a main

garage area, officers also found a gray backpack containing a set

of triple-beam scales, baggies, digital scales and a .25 caliber

handgun.     There    were     no    fingerprints     on   any    of    the    scales.


                                         20
Although the marijuana found on Larry Aikens’s property was sent to

a   laboratory     for    analysis,    the    examining         chemist    could   not

determine whether the marijuana matched the marijuana plants found

in the Forest. Moreover, other people--including Lewis Aikens--had

access to Larry Aikens’s property.

      With      respect   to   Lewis    Aikens’s         property,   the     officers

discovered an electronic scale, camouflage nets, and planting trays

in his home.      The officers also found marijuana seeds, fertilizer,

various firearms, and medical rolling tape identical to the type

used on the marijuana plants in a nearby shed.



                                        II.

      The Government and the majority admit that “[b]oth Larry’s and

Lewis’s drug offenses were alleged to have involved the same

marijuana plants, and to have occurred between approximately July

2003 and October 6, 2003.”        (Op. at 3 (emphasis added).)2              However,

there     was    insufficient    evidence      to    sustain       Larry    Aikens’s

conspiracy      conviction     with    respect      to    the    marijuana    plants

cultivated in the Forest.




      2
      Count One of the Superseding Indictment alleged that Larry
Aikens “did knowingly and intentionally combine, conspire,
confederate and agree with Lewis Aikens and others, both known and
unknown to the Grand Jury, to manufacture and possess with intent
to distribute marijuana, a schedule I controlled substance.” J.A.
10. Count One further stated that “[s]aid offense involved more
than 100 plants containing a detectable amount of marijuana.” Id.

                                        21
                                A.

     In assessing the sufficiency of evidence, we must determine

whether the jury verdict is sustained by “substantial evidence,

taking the view most favorable to the Government,” to support it.

United States v. Pierce, 409 F.3d 228, 231 (4th Cir. 2005) (quoting

Glasser v. United States, 315 U.S. 60, 80 (1942)).    Specifically,

“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.” United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).    In effect, a

reviewing court may not “overturn a substantially supported verdict

merely because it finds the verdict unpalatable or determines that

another, reasonable verdict would be preferable.”    Id.   Moreover,

the jury, not the reviewing court, “weighs the credibility of the

evidence and resolves any conflicts in the evidence presented,”

id., to the extent that “we assume that the jury resolved all

contradictions in the testimony in favor of the Government.”

United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002) (citing

United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998)).

Nevertheless, a conviction “must be overturned if ‘the evidence

here could only lead to a finding of guilt by an unacceptable

process of raw speculation rather than by a reasoned process of

inferring guilt beyond a reasonable doubt.’”     United States v.




                                22
Baker, 985 F.2d 1248, 1251 (4th Cir. 1993) (quoting United States

v. Giunta, 925 F.2d 758, 766 (4th Cir. 1991)).




                                  B.

     To establish a drug conspiracy under Count One, the Government

was required to prove the following elements beyond a reasonable

doubt: “(1) an agreement with another person to violate the law,

(2) knowledge of the essential objectives of the conspiracy, (3)

knowing and voluntary involvement, and (4) interdependence among

the alleged conspirators.” United States v. Stewart, 256 F.3d 231,

250 (4th Cir. 2001) (citing United States v. Heckard, 238 F.3d

1222, 1229 (10th Cir. 2001)).       The “‘gravamen of the crime of

conspiracy is an agreement to effectuate a criminal act.’” Burgos,

94 F.3d at 857 (quoting United States v. Laughman, 618 F.2d 1067,

1074 (4th Cir.), cert. denied, 447 U.S. 925 (1980)).          A conspiracy

is, by its nature, “clandestine and covert, thereby frequently

resulting in little direct evidence of such an agreement.”            Id.

(internal citations omitted). As such, a conspiracy may be “proved

wholly   by   circumstantial   evidence,”   such   as   the   defendant’s

“‘relationship with other members of the conspiracy, the length of

this association, [the defendant’s] attitude [and] conduct, and the

nature of the conspiracy.’”     Id. at 858 (quoting United States v.

Collazo, 732 F.2d 1200, 1205 (4th Cir.), cert. denied, 469 U.S.

1105 (1985)).

                                  23
     I   disagree   that   any   evidence,   direct   or    circumstantial,

sustains the theory that Larry Aikens and Lewis Aikens entered into

a criminal enterprise with respect to the marijuana plantation.

The Government asserts that the major links in the conspiracy--

e.g., the ATV tracks leading from Larry Aikens’s house to the area

near the marijuana cultivation sites and the appearance of the

Aikenses at the ATV--support the existence of an unlawful agreement

between Larry Aikens and Lewis Aikens.           The majority proceeds

further, speculating that Larry Aikens permitted Lewis Aikens to

cross his property to access the Hickory Log Branch trail, which

led to the marijuana cultivation sites, and that Larry Aikens

accompanied Lewis Aikens to retrieve the duffel bags of marijuana

harvested   the   previous   day.    However,   there      was   no   evidence

supporting the inference that Larry Aikens was aware that Lewis

Aikens had used his property to cross the Hickory Log Branch trail,

much less that he had given him permission to do so for the purpose

of reaching the marijuana cultivation sites.            As the Government

concedes, only one set of ATV tracks, which had been freshly formed

the day prior to the Aikenses’ arrest, appeared on the trail.

     Nor was there any evidence indicating that Larry Aikens knew

that Lewis Aikens intended to retrieve the duffel bags of marijuana

on the day of their arrest.      When the two men reached the ATV, one

of them said to the other, “What do you think?”              The other one

responded, “I don’t see them.       Let’s go on up the trail.”          Lewis


                                    24
Aikens continued to examine the ATV, while his father began walking

up the trail.    The remarks exchanged between Larry Aikens and his

son are innocuous and hardly establish that they were on the

lookout for officers, as the majority concludes.   Indeed, for this

conversation to hold any probative significance, the jury must

first speculate that: (1) Agent Young had flushed out a human

being, specifically, Lewis Aikens, on October 5, 2003; (2) Larry

Aikens was aware that Lewis Aikens had been flushed out the

previous day by Forest Service officers; and (3) Larry Aikens knew

that marijuana cultivation sites were hidden up above the steep

hill in the Forest.

     These analytical leaps amount to nothing more than inferences

piled upon inferences; no unifying theory logically connects these

inferences together through a “reasoned process of inferring guilt

beyond a reasonable doubt.”     Baker, 985 F.2d at 1251 (internal

quotations and citations omitted).    Indeed, the Aikenses’ conduct

following this conversation does not support the Government’s

assertion that they were attempting to retrieve the discarded

duffel bags.    Consistent with their theory that they were walking

and bear sighting, Larry Aikens and Lewis Aikens continued to walk

up the trail, rather than up the hill where the duffel bags and

marijuana cultivation sites were located.   Even if the jury could

have inferred that Larry Aikens was walking toward the duffel bags,

this fact does nothing more than establish that Larry Aikens was


                                 25
present at the scene of the crime.        But, as this Circuit has stated

previously, mere presence at the scene of the crime is insufficient

to establish criminal liability.       See United States v. Spoone, 741

F.2d 680, 686 (4th Cir. 1984).         In effect, the evidence did not

permit the jury to make any meaningful connection between the ATV

tracks, the two Aikenses’ conduct at the ATV, and the marijuana

cultivation sites in the Forest.          Moreover, the Government failed

to adduce evidence supporting the rational conclusion that Larry

Aikens and Lewis Aikens entered into an unlawful agreement with

respect to the marijuana plantation scheme, a point that is surely

emphasized by the fact that Lewis Aikens was never charged with

conspiracy.

     I further disagree with the majority’s conclusion that the

evidence    was   sufficient   to   establish    that   Larry   Aikens      had

knowledge   of    the   marijuana   plantation   conspiracy     or   that    he

knowingly and voluntarily participated in the conspiracy.             First,

the majority identifies the following statements made by Larry

Aikens after his arrest: (1) his “false” denial that he did not own

or abandon the ATV and (2) his “contradictory” excuses as to why

they had been in the Forest.        Op. at 14.    However, Larry Aikens’s

claim that the ATV did not belong to him was a true statement; he

said nothing else with respect to the nature of his son’s ownership

of the vehicle.     Similarly, Larry Aikens’s statements that he and

his son were “just walking” and later, that they were walking and


                                     26
tracking bears are not necessarily contradictory to the extent that

they establish his criminal knowledge of any marijuana plantation

scheme.

       Second, the majority’s conclusion that Larry Aikens must have

known that he was engaged in his son’s marijuana plantation scheme

based on his experience as a marijuana dealer is tenuous at best.

As an initial matter, the evidence does not establish that Larry

Aikens    was   aware   of   the    marijuana,    scales,   and   distribution

devices, since they were all found in sealed containers, hidden in

abandoned vehicles and areas outside his residence where access was

open to other people such as renters who entered his property.

Even   assuming   that   Larry     Aikens   was   a   marijuana   dealer,    the

Government failed to present any evidence which would have enabled

Larry Aikens to recognize the marijuana plantation scheme, much

less participate in it.            I simply do not believe a jury could

rationally conclude that Larry Aikens--or any other marijuana

dealer, for that matter--could have recognized that a marijuana

plantation scheme was occurring based what Lewis Aikens did and

said to him on the day of their arrest or the ATV tracks.                   What

Lewis Aikens might have done or said in the presence of Larry

Aikens with respect to the marijuana cultivation sites is rank

speculation.

       Finally, the Government’s case appears to conflate evidence of

the marijuana plantation conspiracy, the offense actually charged,

                                       27
with evidence of manufacturing and possessing with intent to

distribute marijuana, the offenses that could have been charged.

Simply because Larry Aikens may have been a marijuana dealer does

not mean that he engaged in every marijuana scheme that came his

way. The Government concedes that there was no evidence connecting

the marijuana found on Larry Aikens’s property to Lewis Aikens or

the marijuana cultivation sites in the forest.3 Significantly, the

Superseding      Indictment    did      not     charge   Larry       Aikens   with

manufacturing      or    possessing    marijuana.        Yet   his     conspiracy

conviction appears to rest on the officers’ discovery of marijuana

at Larry Aikens’s property, despite the fact that none of it

related to the marijuana plantation scheme charged. Although Larry

Aikens might be guilty of the distinct offenses of manufacturing or

possessing with intent to distribute marijuana, a defendant cannot

be “tried on charges that are not made in the indictment against

him.”      United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994)

(en banc) (internal quotations and citations omitted) (“[A] court

cannot permit a defendant to be tried on charges that are not made

in   the    indictment    against     him.”).      Nor   can   the    Superseding

Indictment be stretched to cover such uncharged offenses without

offending notions of due process.             See United States v. Quinn, 359


      3
      Indeed, the Government initially appeared to argue at oral
argument that the evidence of marijuana found on Larry Aikens’s
property was only admissible based on Rule 404(b) of the Federal
Rules of Evidence, as opposed to being admissible as part of its
case-in-chief.

                                        28
F.3d 666, 672-73 (4th Cir. 2004) (noting that an indictment is

sufficient where it describes the offense using the unambiguous

language of the statute and gives a “statement of the facts and

circumstances as will inform the accused of the specific offense,

coming under the general description, with which he is charged”)

(internal quotations and citations omitted).

       After drawing all inferences in favor of the Government, I

cannot conclude that “any rational trier of fact could have found

the essential elements of [the marijuana plantation conspiracy]

beyond a reasonable doubt.”           United States v. Collins, 412 F.3d

515,   519   (4th   Cir.    2005)   (internal   quotations     and     citations

omitted).      At   best,    the    Government’s   case   rests    on    tenuous

inferences cobbled together by raw speculation.                At worst, the

Government’s case relies on theories that criminal liability may be

predicated    on    mere    association     with   criminals      or    criminal

propensity. Surely our jurisprudence requires more than conviction

based on such conjectures.          Otherwise, we effectively eviscerate

the “beyond reasonable doubt” standard that the Framers thought

prudent to enshrine in our Constitution.

       Because I conclude that the marijuana plantation conspiracy

was not supported by sufficient probative facts, I therefore

respectfully dissent from the majority’s decision to affirm Larry

Aikens’s conviction under Count One.



                                       29
                                   III.

      The majority does not address the sentencing errors identified

by   Larry   Aikens,   deeming   them    harmless    because   the   ten-year

marijuana plantation conspiracy sentence and 60-month moonshining

sentences are to be served concurrently. Since I would reverse the

marijuana     plantation   conspiracy    sentence,    I   do   not   view   the

sentencing errors for the moonshining counts as being harmless.

      We review a “district court’s interpretation of the applicable

sentencing guidelines de novo and its factual findings for clear

error.”      United States v. Collins, 415 F.3d 304, 315 (4th Cir.

2005) (internal quotations and citations omitted). The Presentence

Investigation Report set forth an adjusted offense level of 10 for

Counts Three and Four and a criminal history category of III.

Based on those calculations, the Sentencing Guidelines set forth a

range of ten to sixteen months.         See U.S.S.G. § 5A.      Accordingly,

I would vacate and remand to the district court for resentencing in

accordance with United States v. Booker, 125 S. Ct. 738 (2005) and

United States v. Hughes, 396 F.3d 374 (4th Cir. 2005).




                                    30
