                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4187


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SAMUEL JUVON BOWENS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.          Richard L.
Voorhees, District Judge. (5:07-cr-00050-RLV-DSC-14)


Submitted:   April 14, 2011                   Decided:   April 28, 2011


Before WILKINSON and    NIEMEYER,   Circuit    Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Samuel    Juvon     Bowens   appeals     his     conviction   after    a

jury trial and 324-month sentence for one count of conspiracy to

possess   with   intent   to    distribute     a   quantity     of   cocaine   and

cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A), 846, 851

(2006) and three counts of possession with intent to distribute

a quantity of cocaine base and aiding and abetting in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(B), 18 U.S.C. § 2 (2006).                       We

affirm.

           Bowens raises four claims of error on appeal:                 (1) his

conviction was based on insufficient evidence; (2) the district

court impermissibly limited the scope of his cross-examination

of a government witness; (3) the court erred in overruling his

challenge to a sentence enhancement pursuant to 21 U.S.C. § 841;

and (4) the district court miscalculated the amount of drugs

accountable to him.       For the reasons that follow, we reject each

claim.



                    I.    Sufficiency of the Evidence

           Bowens    does      not   contest       the    sufficiency    of    the

evidence forming the basis of his convictions for possession

with intent to distribute cocaine base.                  Rather, he argues that

the Government did not meet its burden to show that he was



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engaged in a conspiracy to possess with intent to distribute

cocaine and cocaine base.

              “A     defendant    challenging           the      sufficiency        of    the

evidence faces a heavy burden.”                   United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007).                   We review a sufficiency of the

evidence challenge by determining whether, viewing the evidence

in    the   light    most   favorable     to      the    government,         any   rational

trier of fact could find the essential elements of the crime

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

515,    519        (4th Cir. 2005).              We     review        both     direct     and

circumstantial         evidence,       and        accord        the     government        all

reasonable inferences from the facts shown to those sought to be

established.          United     States      v.       Harvey,    532     F.3d      326,   333

(4th Cir. 2008).         In reviewing for sufficiency of the evidence,

we do not review the credibility of the witnesses, and assume

that the jury resolved all contradictions in the testimony in

favor of the government.              United States v. Kelly, 510 F.3d 433,

440    (4th Cir. 2007).          We    will      uphold    the        jury’s    verdict    if

substantial evidence supports it, and will reverse only in those

rare cases of clear failure by the prosecution.                                Foster, 507

F.3d at 244-45.

              Because this case involved a conspiracy charge under

21 U.S.C. § 846, the Government was required to prove (1) an

agreement between Bowens and another person to engage in conduct

                                             3
that violated a federal drug law; (2) Bowens’s knowledge of the

conspiracy; and (3) Bowens’s knowing and voluntary participation

in the conspiracy.              United States v. Strickland, 245 F.3d 368,

384-85 (4th Cir. 2001).                 Since a conspiracy is by its nature

clandestine and covert, it is generally proved by circumstantial

evidence.           United        States    v.      Burgos,     94    F.3d        849,     857

(4th Cir. 1996)           (en     banc).         Evidence     tending        to    prove    a

conspiracy     may     include      a     defendant’s    relationship         with       other

members of the conspiracy, and the existence of a conspiracy may

be inferred from a development and collocation of circumstances.

Id. at 858.          “Circumstantial 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.”                                  Id.

(citation omitted).

              It     is    unnecessary        that      the     conspiracy          have     a

“discrete,         identifiable         organizational        structure.”            United

States   v.     Banks,       10    F.3d     1044,    1054     (4th Cir. 1993).             An

important     consideration          is    “whether    the    actor     demonstrated         a

substantial level of commitment to the conspiracy, for example

by engaging in a consistent series of smaller transactions that

furthered its ultimate object of supplying the consumer demand

of the market.”           Id. (citation and internal quotation marks and

brackets omitted).

                                              4
            We     have     reviewed      the   record,      and     conclude        that

sufficient       evidence    supports      Bowens’s     conspiracy         conviction.

While Bowens is correct that there was no direct evidence of a

formal, structured drug enterprise, numerous witnesses testified

that   they      purchased    large     quantities      of    cocaine       base     from

Bowens, while others testified to selling large quantities of

powder    cocaine    and     cocaine    base    to    Bowens.        The    volume     of

narcotics     Bowens       transacted      clearly     implies       an     effort    to

“further [his] object of supplying the consumer demand of the

market” thereby satisfying the elements of a conspiracy charge.

See id.

            Bowens     devotes     much    of   his   brief     to    attacking       the

credibility of the witnesses against him, as many were indicted

as co-conspirators.          It is axiomatic, of course, that we do not

review the credibility of the witnesses.                     Kelly, 510 F.3d at

440.



                      II.    Scope of Cross-Examination

            Bowens next argues that the district court improperly

limited     the    scope     of   his     cross-examination          of    Dr.   Hacene

Boudries, an expert witness for the Government.                           Boudries, an

analytic chemist, testified about the functionality of the GE

Itemiser 3, a device that, in this case, identified traces of

cocaine on currency that was taken from Bowens’s person at the

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time of his arrest.         Boudries testified that if used properly,

the Itemiser 3 would only produce a “false alarm” in two percent

of cases or less.          During cross-examination, Bowens sought to

have Boudries characterize the machine’s results as “opinions”

or “fact.”    The following exchange took place:

     Q.   . . . Let me ask you, any of these test or
     results performed by the itemiser 3, are they fact?
     The conclusion, is that a fact?

     A.   [Y]eah, the results are – it’s telling you with a
     high level of confidence that something – a drug has
     been detected . . . You can look at the level or the
     intensity of the peak. That’s what it is.      I mean,
     it’s an analytical tool that results.

     Q.      But that’s a high level opinion, isn’t’ it, sir?

     A.      Sorry? Can you repeat your question, please.

     Q.   Your answer was the test results are considered
     fact, right?

     THE COURT:     That’s argumentative,               counselor.        You
     may move on to something else.

     Q.   Does a fact ever have less than a two percent
     failure rate?

     THE COURT:          Same ruling.

     Q.      Is it a fact that Charles deGualle [sic] is dead?

     THE COURT:          Same ruling.

     MR. FORRESTER [defense counsel]: No further questions.

            Bowens      challenges      the   court’s    actions     on   appeal.

Because he did not object to, or otherwise challenge the court’s

decision in the district court, our review is for plain error.

United    States   v.    Olano,   507    U.S.   725,    732-35   (1993).        “To

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establish          plain     error,      [Bowens]       must       show     that    an     error

occurred, that the error was plain, and that the error affected

his substantial rights.”                  United States v. Muhammad, 478 F.3d

247,     249       (4th Cir. 2007).            Even     if    Bowens       satisfies       these

requirements,         “correction         of     the    error      remains        within    [the

Court’s] discretion, which [the Court] should not exercise . . .

unless the error seriously affect[s] the fairness, integrity or

public     reputation         of   judicial          proceedings.”           Id.     (internal

quotation marks and citation omitted).

               A    defendant      has    the        right   to      ‛a
                                                                    have    “      meaningful

opportunity to present a complete defense.’”                               United States v.

Smith,     451       F.3d,    209,    221        (4th Cir. 2006)           (quoting        United

States v. Scheffer, 523 U.S. 303, 329 (1998)).                                    Accordingly,

“the right of cross examination is a precious one, essential to

a fair trial,” and the defendant should be given “a reasonable

opportunity to conduct cross-examination that might undermine a

witness’s testimony.”              Id. (internal quotation marks omitted).

However, the district court may “impose reasonable limits on

cross-examination,            [based]       on       such    concerns        as     prejudice,

confusion, repetition, and relevance.”                       Id.

               Based on our review of the record, we do not conclude

that the district court plainly erred.                         Bowens’s line of cross-

examination had been explored thoroughly.                          Boudries acknowledged

an error rate of two percent even in a properly administered

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test; Bowens effort to have Boudries characterize this outcome

was argumentative at best and invaded the province of the jury

at   worst.      Moreover,     Bowens    could      have       changed   his    line   of

questioning      to     emphasize     the       incidence       of   false      positive

outcomes, but chose instead to end his examination.                            We cannot

conclude, on these facts, that the district court erred, much

less plainly so.



                         III. Sentencing Enhancement

              Bowens next claims that the district court erred in

overruling his objection to the § 841 enhancement because the

underlying state felony conviction was not a proper predicate

for the purposes of § 841.              He was convicted in 2003 in North

Carolina court of felony possession of cocaine.

              21 U.S.C. § 841(b)(1)(A) imposes a ten year mandatory

minimum sentence for violations of § 841(a) if the defendant

violates § 841(a) “after a prior conviction for a felony drug

offense has become final.”            21 U.S.C. § 841(b)(1)(A).                Whether a

district      court     properly    interpreted          the    term     “felony    drug

offense” in § 841(b)(1)(A) “involves a pure question of law,”

which we review de novo.              United States v. Burgess, 478 F.3d

658, 661 (4th Cir. 2007).

              Section    841   does   not       define    the    term    “felony    drug

offense,” but 21 U.S.C. § 802(44) (2006) does, “in plain and

                                            8
unambiguous terms.”        Id. at 662.         Section 802(44) defines felony

drug offense as “an offense that is punishable by imprisonment

for more than one year under any law of the United States or of

a State or foreign country that prohibits or restricts conduct

relating   to     narcotic    drugs,    marihuana,        anabolic   steroids,    or

depressant or stimulant substances.”                 21 U.S.C. § 802(44).       This

court has held that “because the term ‘felony drug offense’ is

specifically defined in § 802(44), and § 841(b)(1)(A) makes use

of that precise term, the logical, commonsense way to interpret

‘felony drug offense’ in § 841(b)(1)(A) is by reference to the

definition in § 802(44).”            Burgess, 478 F.3d at 662 (internal

quotation marks and alterations omitted).

             Bowens does not argue that his 2003 North Carolina

conviction for felony possession of cocaine was not punishable

by more than one year’s imprisonment or that it was unrelated to

narcotics.      Rather, he argues that the Supreme Court’s decision

in Lopez v. Gonzalez, 549 U.S. 47 (2006) implicitly abrogated

§ 802(44).      In Lopez, the Supreme Court held that conduct that

is   a   felony    under     state   law       but   a   misdemeanor    under    the

Controlled      Substances     Act     does      not     qualify   as   a   “felony

punishable under the Controlled Substances Act” sufficient to be

considered an aggravated felony for purposes of the Immigration

and Nationality Act.         Lopez, 549 U.S. at 50.



                                           9
             We     conclude      that       Bowens’s     reliance       on     Lopez       is

misplaced.        Lopez involved a matter of statutory interpretation

where Congress was silent, i.e., the issue of whether certain

state felonies are also aggravated felonies under the Controlled

Substance Act.          See Lopez, 549 U.S. at 54 (“Congress can define

an aggravated felony . . . in an unexpected way.                          But Congress

would need to tell us so[.]”).

             Here, Congress has clearly willed that a “felony drug

offense” is one that is “punishable by imprisonment for more

than   one   year       under    any   law    of    the   United       States   or     of    a

State[.]”         21    U.S.C.    §    802(44)      (emphasis      added).        Because

Bowens’s     2003      conviction      was   for    a   felony    drug    offense,      the

district court did not err in overruling Bowens’s objection to

the § 841 enhancement.



                          IV.    Drug Amount Calculation

             Finally, Bowens argues that the district court erred

in finding that he was responsible for over 3.5 kilograms of

powder cocaine and over three kilograms of cocaine base.                                This

court reviews a drug quantity finding for clear error.                               United

States v. Kellam, 568 F.3d 125, 147 (4th Cir. 2009).                            Under the

clear error standard of review, we will reverse only if “left

with the definite and firm conviction that a mistake has been

committed.”            United    States      v.    Jeffers,      570    F.3d    557,     570

                                             10
(4th Cir. 2009) (internal quotation marks and citation omitted).

At sentencing, the government need only establish the amount of

drugs    involved      by    a    preponderance      of    the    evidence.        United

States v. Brooks, 524 F.3d 549, 561-62 (4th Cir. 2008).                           “Where

there is no drug seizure or the amount seized does not reflect

the   scale     of    the    offense,    the      court    shall       approximate    the

quantity      of     the    controlled        substance.”              U.S.    Sentencing

Guidelines Manual § 2D1.1, comment. (n.12) (2009).

              We conclude the district court did not err.                           While

Bowens contests the veracity of witness testimony against him,

that testimony is sufficient to form the basis for the drug

amount attributed to Bowens.             Again, this court will not revisit

questions of witness credibility.

              We     therefore     affirm     the    judgment      of     the    district

court.     We dispense with oral argument because the facts and

legal    contentions        are    adequately       addressed      in    the    materials

before    the      court    and    argument      would    not    aid    the    decisional

process.

                                                                                 AFFIRMED




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