                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 06-5108



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


RICKY JAMES LYALL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00238)


Submitted:   June 17, 2008                 Decided:   July 21, 2008


Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Harold M. Vaught, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ricky James Lyall was convicted by a jury of two counts

of conspiracy to possess with intent to distribute a quantity of

cocaine and a quantity of methamphetamine, in violation of 21

U.S.C. §§ 846 and 841(a)(1) (2000); one count of possessing with

intent to distribute a quantity of cocaine and a quantity of

methamphetamine, and aiding and abetting in the same, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2000); and four counts

of possessing with intent to distribute a quantity of cocaine, and

aiding    and   abetting      in    the   same,   in   violation   of   21   U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2 (2000).              The conduct for which Lyall

was convicted occurred while he was employed as a sheriff’s deputy

and narcotics detective.             The district court sentenced Lyall to

concurrent terms of 121 months’ imprisonment for each count. Lyall

appeals his conviction and sentence. For the following reasons, we

affirm.

            Lyall first challenges the sufficiency of the evidence

supporting his conspiracy convictions.                 Lyall alleges that his

co-conspirators thought they were acting as government agents, and

therefore,      there   was    no    common     criminal   plan.    A   defendant

challenging the sufficiency of the evidence faces a heavy burden.

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).

“[A]n appellate court’s reversal of a conviction on grounds of

insufficient     evidence      should      be   confined   to   cases   where   the


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prosecution’s failure is clear.”      United States v. Jones, 735 F.2d

785, 791 (4th Cir. 1984) (internal quotation marks omitted).                  A

verdict must be upheld on appeal if there is substantial evidence

in the record to support it.       Glasser v. United States, 315 U.S.

60, 80 (1942).    In determining whether the evidence in the record

is substantial, this court views the evidence in the light most

favorable to the government, and inquires whether there is evidence

that a reasonable finder of fact could accept as adequate and

sufficient to establish a defendant’s guilt beyond a reasonable

doubt.   United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)

(en banc).

          “To    prove   a   conspiracy    under   21   U.S.C.   §    846,   the

government must prove (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. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001); see

also Burgos, 94 F.3d at 857.         A defendant may be convicted of

conspiracy without knowing all the conspiracy’s details, as long as

he joins the conspiracy understanding its unlawful nature and

willfully joins in the plan on at least one occasion.                Burgos, 94

F.3d at 858.     “The existence of a tacit or mutual understanding

between conspirators is sufficient evidence of a conspiratorial

agreement.” United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.


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2005) (internal quotation marks and citation omitted); see Burgos,

94 F.3d at 857 (“By its very nature, a conspiracy is clandestine

and covert, thereby frequently resulting in little direct evidence

of such an agreement.”)

            While a person cannot be convicted of conspiring with a

government agent, see United States v. Lewis, 53 F.3d 29, 33 (4th

Cir. 1995), the co-conspirators in the present case were not in

fact acting as government agents. Accordingly, Lyall’s argument is

without merit.     After reviewing the evidence adduced at trial, we

conclude that when the evidence is construed in the light most

favorable to the Government, it is sufficient to support the jury’s

verdict.    Accordingly, we affirm Lyall’s conspiracy convictions.

            Lyall next claims that the district court violated his

Sixth Amendment rights by enhancing his sentence based on findings

made by the court, rather than a jury.        Lyall’s claim is foreclosed

by United States v. Booker, 543 U.S. 220 (2005), and its progeny.

After Booker, a district court is no longer bound by the range

prescribed by the sentencing guidelines.         United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005).            However, courts still must

calculate    the   applicable   guideline      range   after   making   the

appropriate findings of fact and consider the range in conjunction

with other relevant factors under the guidelines and § 3553(a).

See Gall v. United States, 128 S. Ct. 586, 596 (2007).            We will

review     the   sentence   under    an     abuse-of-discretion   standard


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regardless of whether the sentence imposed is inside or outside of

the guidelines range.         Id. at 597.

             Under an advisory guidelines scheme, a district court

does not violate the Sixth Amendment by making factual findings as

to sentencing factors by a preponderance of the evidence as long as

the fact-finding does not enhance the sentence beyond the maximum

term specified in the substantive statute.                See United States v.

Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding that “Booker does

not in the end move any decision from judge to jury, or change the

burden     of   persuasion”)     (internal       quotation    marks   omitted).

Accordingly, Lyall’s Sixth Amendment argument fails.

            Finally,     Lyall   challenges       the   factual   basis   of   the

firearm enhancement pursuant to U.S. Sentencing Guidelines Manual

(“USSG”)    §   2D1.1(b)(1)(2005).          An    enhancement     under   USSG   §

2D1.1(b)(1)     is    reviewed   for    clear    error.      United   States     v.

McAllister,     272    F.3d   228,   234   (4th    Cir.   2001).      Under    the

guidelines, a defendant receives a two-level increase to his base

offense level under USSG § 2D1.1(b)(1) if a dangerous weapon was

possessed during the offense.          This “adjustment should be applied

if the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.”             USSG § 2D1.1(b)(1), cmt.

n.3.     “Under relevant conduct principles, the enhancement applies

when the weapon was possessed in connection with drug activity that

was part of the same course of conduct or common scheme as the


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offense of conviction.”      McAllister, 272 F.3d at 233-34 (internal

quotation marks and citation omitted).

            Here, the evidence in the record demonstrated that Lyall

had his service revolver with him during at least one occasion when

he provided cocaine to a co-conspirator.        Thus, the district court

did   not   clearly   err   in   enhancing   Lyall’s   offense   level   for

possession of a weapon.      See McAllister, 272 F.3d at 234 (“In order

to prove that a weapon was present, the Government need show only

that the weapon was possessed during the relevant illegal drug

activity.”)

            We therefore affirm the district court’s judgment.            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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