                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4656


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

TYSON ANDERSON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge. (1:08-cr-00024-jpj-pms-9)


Submitted:   July 27, 2010                  Decided:   August 13, 2010


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles Gregory Phillips, PHILLIPS & PHILLIPS, Salem, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney,
Jennifer   R.  Bockhorst,   Assistant United  States  Attorney,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               A    jury        convicted        Tyson       Anderson        of    conspiracy       to

distribute and possess with intent to distribute cocaine and

cocaine    base,          in    violation        of    21     U.S.C.     §    846       (2006),    and

distribution and possession with intent to distribute cocaine

base and aiding and abetting, in violation of 18 U.S.C. § 2

(2006), 21 U.S.C. § 841(a) (2006).                           The district court sentenced

Anderson to eighteen months of imprisonment and he now appeals.

Finding no error, we affirm.

               On appeal, Anderson argues that there was insufficient

evidence       to    support          the   convictions.             This     court       reviews    a

district       court’s          decision     to       deny    a   Rule       29    motion    for     a

judgment of acquittal de novo.                        United States v. Smith, 451 F.3d

209,    216        (4th        Cir.    2006).           A    defendant        challenging          the

sufficiency         of     the     evidence       faces       a   heavy       burden.        United

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

verdict of a jury must be sustained “if, viewing the evidence in

the    light       most    favorable        to    the       prosecution,          the    verdict    is

supported by ‘substantial evidence.’”                             Smith, 451 F.3d at 216

(citations omitted).                   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. (internal quotation marks and citation

omitted).      Furthermore,             “[t]he     jury,       not   the      reviewing      court,

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weighs     the     credibility          of    the        evidence     and     resolves       any

conflicts in the evidence presented.”                       Beidler, 110 F.3d at 1067

(internal quotation marks and citation omitted).                              “Reversal for

insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.”                     Id. (internal quotation marks

and citation omitted).

            In order to prove that Anderson conspired to possess

with     intent       to     distribute       cocaine        and    cocaine        base,     the

Government needed to show (1) an agreement between two or more

persons, (2) that Anderson knew of the agreement, and (3) that

Anderson        knowingly         and   voluntarily          joined     the        conspiracy.

United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en

banc) (citations omitted).                    However, the Government need not

make     this    showing          through     direct       evidence.          In    fact,     “a

conspiracy       may    be    proved       wholly    by     circumstantial          evidence.”

Id. at 858.            A conspiracy therefore may be inferred from the

circumstances presented at trial.                         Id.      Furthermore, although

the    Government          must    prove     all    of    the   elements      listed       above

beyond a reasonable doubt, “[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.”    Id.



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            In    order      to     establish         possession        with    intent    to

distribute,      the    Government         had   to    prove    beyond     a    reasonable

doubt that Anderson (1) knowingly, (2) possessed the cocaine

base, (3) with the intent to distribute it.                         Burgos, 94 F.3d at

873.       Possession         can     be    actual       or     constructive.            Id.

Furthermore, “[l]ike conspiracy, [c]onstructive possession may

be   established       by   either     circumstantial          or   direct      evidence.”

Id. (internal quotation marks omitted).

            We have thoroughly reviewed the record and conclude

that the Government provided substantial evidence from which the

jury could conclude that Anderson was guilty of the offenses for

which he was convicted.               See id. at 862 (“[D]eterminations of

credibility are within the sole province of the jury and are not

susceptible to judicial review.”) (internal quotation marks and

citation omitted).

            Accordingly, we affirm the judgment of the district

court.     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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