                            ON REHEARING

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4327


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL CARL STEVENSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (7:08-cr-00057-BO-3)


Submitted:   October 25, 2011              Decided:   December 9, 2011


Before DAVIS, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Denise Walker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              After     a    jury       trial,        Michael        Carl   Stevenson       was

convicted of one count of conspiracy to possess with intent to

distribute 500 grams or more of cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 846 (2006).                      On appeal, Stevenson’s counsel

filed a brief claiming the evidence was insufficient to support

the conviction.          We affirmed.            See United States v. Stevenson,

No.   10-4327,        2011        WL    2837402        (4th     Cir.    July    19,        2011)

(unpublished).          We subsequently stayed the mandate pursuant to

Fed. R. App. P. 41(d)(1) and granted Stevenson’s pro se petition

for   rehearing,        reinstated        and        granted    his    November       2,   2010

motion    for    leave       to    file    a     pro    se     supplemental      brief       and

directed the Government to file a brief addressing Stevenson’s

pro se claim that the district court abused its discretion by

ordering a sentence at the top end of the Sentencing Guidelines,

without    indicating         it       considered       counsel’s       arguments      for     a

sentence at the low end of the Guidelines or any of the 18

U.S.C.    §     3553(a)      (2006)       sentencing           factors,     citing     United

States v.       Lynn,    592       F.3d    572       (4th     Cir.    2010),    and    United

States v. Carter, 564 F.3d 325 (4th Cir. 2009).                             After receiving

the Government’s brief and conducting further review, we affirm

the conviction and sentence.

              This court reviews de novo the denial of Stevenson’s

motion for judgment of acquittal.                       See United States v. Green,

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599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct. 271

(2010). “[V]iewing the evidence in the light most favorable to

the Government,” United States v. Bynum, 604 F.3d 161, 166 (4th

Cir.) (internal quotation marks omitted), cert. denied, 130 S.

Ct.    3442     (2010),       the     court             is    to     determine             whether    the

conviction       is     supported          by        “substantial                evidence,”          where

“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.     Young,       609       F.3d       348,       355       (4th    Cir.     2010)

(internal quotation marks omitted).                                The ultimate question is

whether       “any    rational       trier          of       facts       could      have     found    the

defendant guilty beyond a reasonable doubt.”                                    Bynum, 604 F.3d at

166 (internal quotation marks omitted).

               Conviction       for       conspiracy               to     distribute          narcotics

under 21 U.S.C. § 846 requires proof beyond a reasonable doubt

of    three    elements:           “(1)        an    agreement            between       two    or    more

persons to engage in conduct that violates a federal drug law,

(2) the defendant’s knowledge of the conspiracy, and (3) the

defendant’s          knowing        and        voluntary             participation             in     the

conspiracy.”          United States v. Kellam, 568 F.3d 125, 139 (4th

Cir.),    cert.       denied,       130        S.       Ct.    657       (2009).            “Because    a

conspiracy is by nature clandestine and covert, there rarely is

direct    evidence      of     such       an    agreement            .    .     .   [C]onspiracy        is

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usually proven by circumstantial evidence.”               United States v.

Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (internal quotation

marks and citation omitted).             Evidence supporting an agreement

may    consist     of    the   defendant’s    relationship   to    the     other

conspirators and his conduct and attitude during the course of

the conspiracy.         United States v. Burgos, 94 F.3d 849, 858 (4th

Cir. 1996) (en banc).

           We conclude that the evidence was sufficient to show

that    Stevenson       entered   into   a   conspiracy   with    Beatty     and

Patterson.       Stevenson knew Beatty had a history of dealing drugs

and had allowed him to store drugs on his property.               On the day

of the transaction, Stevenson provided Beatty with drug testing

kits, drove him and Patterson to the location of the drug deal,

kept his plans private from other individuals, discussed with

the other two men that they needed to be on the same page if

anything went wrong and agreed to accept payment of $1000 for

driving.     We conclude that this evidence of Stevenson’s conduct

and attitude shows that he was in agreement with the other men

to purchase narcotics for the purpose of distribution.

           We have reviewed the issues Stevenson presented in his

pro se supplemental brief and conclude that none of the issues

compel us to vacate his conviction or sentence.              With regard to

Stevenson’s sentencing issues, we have reviewed the record and

conclude that the district court did not abuse its discretion.

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See   Gall   v.     United    States,       552    U.S.       38,   51    (2007)    (stating

standard of review).

             The    court     reviews       first       the    reasonableness           of   the

process by which the sentencing court arrived at its decision

and then reviews the reasonableness of the sentence itself.                                  Id.

In determining the procedural reasonableness of a sentence, this

court considers whether the district court properly calculated

the   Guidelines       range,       treated        the    Guidelines        as     advisory,

considered     the     §     3553(a)        factors,      analyzed         any     arguments

presented     by     the     parties,        and    sufficiently           explained         the

selected sentence.            Id.     “Regardless of whether the district

court imposes an above, below, or within-Guidelines sentence, it

must place on the record an individualized assessment based on

the particular facts of the case before it.”                             United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation

marks omitted).         Where, as here, the district court imposed a

within-Guidelines          sentence,        the      explanation          may      be    “less

extensive,     while       still     individualized.”                United      States       v.

Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. denied, 130 S.

Ct.   2128    (2010).          “This        is     because         guidelines      sentences

themselves    are     in     many    ways    tailored         to    the   individual         and

reflect approximately two decades of close attention to federal

sentencing policy.”            Id.     (internal quotation marks omitted).

However,     that    explanation        must       be    sufficient        to    allow       for

                                             5
“‘meaningful       appellate    review,’”    Carter,       564   F.3d    at     330

(quoting Gall, 552 U.S. at 50), such that the appellate court

need “not guess at the district court’s rationale.”                 Id. at 329.

A court’s reasoning for imposing a within-Guidelines sentence

may   be   clear   from   anything    the   court   said    to   the    defendant

throughout     the   sentencing      hearing.       See    United      States    v.

Thompson, 595 F.3d 544, 547 (4th Cir. 2010).

             In order to preserve a sentencing issue for appellate

review, the defendant “must, at some point in the proceedings

draw arguments from § 3553 for a sentence different than the one

ultimately imposed[.]”         United States v. Lynn, 592 F.3d 576, 578

(4th Cir. 2010); see also United States v. Boulware, 604 F.3d

832, 838 (4th Cir. 2010) (arguments under 18 U.S.C. § 3553(a)

for a sentence different than the one imposed are sufficient to

preserve a claim).

             Under 18 U.S.C. § 3553(a), the district court should

consider the nature and circumstances of the offense and the

history and characteristics of the defendant, the need for the

sentence to reflect the seriousness of the offense, to promote

respect for the law, to provide just punishment for the offense,

to provide adequate deterrence, to protect the public and to

provide the defendant with educational and vocational training.

             Stevenson’s counsel requested a sentence at the low

end of the Guidelines, asserting that such a sentence would be

                                       6
sufficient deterrence and would serve to protect the public.

Because counsel’s request for a low sentence was not supported

with    anything          from    the     record       and   was     nothing   more      than    a

recitation           of   two    of     the    § 3553(a)       sentencing         factors,      we

conclude that the court was not obliged to directly respond to

counsel’s request.                We note, in contrast, that the Government

provided         a    factual     basis       in   support      of    its   request       for    a

sentence at the high end of the Guidelines.

                 We conclude that the district court properly “place[d]

on     the       record     an    individualized             assessment     based        on   the

particular facts of the case before it,” Carter, 564 F.3d at

330,     and         adequately       stated       its       reasoning      for    sentencing

Stevenson to the high end of the Guidelines.                                The sentencing

transcript demonstrates that the court, having presided over the

trial,       based         the     sentence            on    Stevenson’s       history        and

characteristics.                For example, the court stated the Guideline

range and then heard arguments from defense counsel and from the

Government.               The    court    also     permitted         Stevenson      to    speak.

During       a       colloquy      with       Stevenson,       the     court      stated      the

following: “I think that you’ve had a life of manipulation and

deceit and that you have been able to survive through those

methodologies and that, unfortunately for you, the time has come

where the lies and deceit have run out.”



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            Even if the district court failed to give adequate

consideration to counsel’s request for a sentence at the low end

of the Guidelines or to the § 3553(a) sentencing factors, we

conclude that any error was harmless.             There is nothing in the

record to suggest that the court’s approach to determining the

sentence had an improper substantial and injurious effect or

influence on the proceedings.        See Lynn, 592 F.3d at 585.

            Accordingly,      we   affirm   Stevenson’s       conviction   and

sentence.      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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