                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4811


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

YVONNE MARIE FOUNTAIN,

                Defendant - Appellant.



                             No. 09-4835


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KENNETH LEE FOSTER,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Asheville.   Lacy H. Thornburg,
District Judge.  (1:09-cr-00013-MR-DLH-9; 1:09-cr-00013-MR-DLH-
8)


Argued:   January 28, 2011                 Decided:   March 14, 2011


Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED:   Samuel   Bayness   Winthrop,  WINTHROP   &   WINTHROP,
Statesville, North Carolina; Sherlock Valentino Grigsby, LAW
OFFICE OF SHERLOCK GRIGSBY, Washington, D.C., for Appellants.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.     ON BRIEF: Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

          Yvonne       Marie   Fountain    and     Kenneth       Lee   Foster

(collectively   “the    Defendants”)    appeal    from   their   convictions

following a joint jury trial and from the sentences imposed by

the district court.        On appeal, they argue: (1) the district

court erred in denying their motions to sever and motions to

suppress; (2) there was insufficient evidence to sustain their

drug conspiracy convictions; and (3) the district court erred at

sentencing.     For the reasons set forth below, we affirm the

judgment of the district court in both cases.



                                   I.

          The Defendants were charged, along with a number of

co-defendants   and    co-conspirators,    with    conspiring     to   possess

with intent to distribute cocaine base (“crack cocaine”), in

violation of 21 U.S.C. §§ 846 and 841(a)(1).              They were tried

jointly, along with a co-conspirator, Perry Roger Shippy.                 The

jury returned guilty verdicts as to all three defendants on the

conspiracy charge.      The jury also found Foster and Shippy guilty

of knowingly using a communication facility to further a drug

offense, in violation of 21 U.S.C. § 843(b). 1



     1
       Fountain was also charged with the Section 843(b) offense,
but the government conceded that Fountain’s motion for judgment
(Continued)
                                    3
            The    evidence     regarding           the     crack    cocaine       conspiracy

was     gathered    initially        by    investigators             using     traditional

investigative       techniques,        including            controlled       purchases    of

crack      cocaine,      use     of        confidential             sources,         physical

surveillance, and traffic stops after suspected drug purchases.

After discovering that the conspiracy was likely widespread and

involved    large     amounts    of    crack            cocaine,    investigators       later

sought and obtained a wiretap order, subsequently extended by

the district court, in order to intercept communications from

telephone    numbers        believed      to       be    utilized     by    Foster.       The

wiretaps    were      sought    so     that         investigators          could     identify

Foster’s sources of supply and additional distributors and also

after     agents      had     encountered               difficulties       with      physical

surveillance.

            The Defendants were arrested when search warrants were

executed at their respective residences.                           During the search of

the residence Fountain shared with her boyfriend, Dennis Lamar

Bruton, 2 investigators found Fountain in a bathroom accessible

from the master bedroom, where Bruton was located.                            Officers had




as to that count should be granted.                       It was not submitted to the
jury.
      2
       Bruton, who was indicted as a co-defendant, pled guilty to
the conspiracy charge.



                                               4
to use force to open both the bedroom and bathroom doors.                     Once

officers    forcibly     entered    the       bathroom,   Fountain      was   found

standing next to the toilet with chunks of crack cocaine on the

toilet seat, in the toilet, and on the floor beside the toilet.

Additionally, although Fountain stated that she had just taken a

shower, she was wearing pajamas, had a nightgown on over the

pajamas,    and   was    dry.   Agents        recovered   from    her   residence

almost 200 grams of crack cocaine, including 92.2 net grams of

crack cocaine in the master bathroom.              Agents also discovered 23

grams of marijuana, a scale, a box of ammunition, and more than

$20,000 in United States currency. 3

            The evidence against Foster was significant.                 The jury

heard    that   Foster   received    large      quantities   of    cocaine     from

suppliers, “cooked” or converted the powder into crack cocaine

and sold it to numerous individuals.                 He engaged in multiple

daily crack cocaine transactions over the course of many months.

When the search warrant was executed at his home in February

2009, more than 150 net grams of crack cocaine, more than 500

     3
       In addition to Fountain’s conduct during the execution of
the search warrant and evidence seized from her home, evidence
of Fountain’s participation in the conspiracy also included her
being observed by a detective in August 2008 leaving her
residence, walking to an automobile parked outside, sitting in
the automobile for approximately two minutes, and then exiting
with a large amount of cash in her left hand. Although Fountain
asserts on appeal that this transaction was not drug-related,
the jury was entitled to infer otherwise.



                                          5
net   grams    of   powder     cocaine,       and   over       $5,000    in   cash     were

seized, as      well    as    various    materials       used     to    convert    powder

cocaine to crack cocaine.

              The   only     evidence    of     direct     communications         between

Foster and Fountain involved four phone calls, but none of these

conversations were related to drug transactions.                              There were

significant drug-related contacts, however, between Foster and

Bruton.       Intercepted      wire     communications         revealed       Bruton    and

Foster repeatedly conversed about the large-scale distribution

of controlled substances.

              Upon return of the guilty verdicts by the jury, the

district   court       sentenced    Fountain        to   the    mandatory      statutory

minimum of 240 months.             Foster was sentenced to 360 months on

the conspiracy count and 96 months on the § 843(b) offense, to

be served concurrently.            Both defendants noted timely appeals.

This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742.



                                          II.

                                          A.

              The Defendants argue that the district court erred in

failing to grant their motions to sever.                         They had requested

separate trials and to be tried separately from Shippy, who had

been charged in a separate indictment but was alleged to be part

                                           6
of the same conspiracy.           In denying the motions to sever and

granting the Government’s motion for joinder, the district court

specifically found both that the conspiracy alleged could have

been brought in a single indictment and that a joint trial did

not appear to pose a risk of prejudice to any defendant’s right

to a fair trial.

            We review a district court’s decision to deny a motion

to sever for abuse of discretion.             United States v. Singh, 518

F.3d 236, 255 (4th Cir. 2008).              While severance of trials for

defendants named in the same indictment is permitted if joinder

“appears to prejudice a defendant,” Fed. R. Crim. P. 14, joint

trials of defendants who are indicted together are preferred.

Zafiro v. United States, 506 U.S. 534, 537 (1993).                Accordingly,

“a district court should grant a severance under Rule 14 only if

there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the

jury from making a reliable judgment about guilt or innocence.”

Id.   at   539.     In   a   conspiracy     case,   moreover,   “[j]oinder    is

particularly      favored.”    United   States      v.   Montgomery,   262   F.3d

233, 244 n.5 (4th Cir. 2001) (citation omitted).

            The record here supports the district court’s decision

to deny the motions to sever.               Having been indicted together,

neither Fountain nor Foster demonstrated a strong showing of

prejudice from a joint trial as required for severance under

                                        7
Rule 14. See United States v. Mir, 525 F.3d 351, 357 (4th Cir.

2008).     As to Shippy being tried with them, while he was charged

in a separate indictment, he was charged with conspiring with

Foster and Bruton (as well as other co-conspirators) and over

the same period of time and in the same geographic area as

Fountain and Foster.              Thus, he could have been charged in the

same indictment and joinder was permissible.                            See Fed. R. Crim.

P. 13.     Again, no showing of prejudice from the joinder has been

made.      Especially in light of the preference for joinder in

conspiracy       cases,        the     district       court       did    not      abuse      its

discretion      in     allowing       Shippy     to   be    tried    with      Fountain      and

Foster.



                                               B.

               Foster next challenges the district court’s denial of

his motion to suppress evidence seized at his residence which he

contends       was     based     on    a   defective         search        warrant.          The

Defendants also challenge the district court’s denial of their

motions    to        suppress     evidence          obtained      through      the     wiretap

orders.

               Foster first argues that his motion to suppress should

have    been    granted        because     the      search       warrant    was      based    on

“stale” evidence.         There is no merit in his contention.                        Special

Agent    Dan    Guzzo’s    affidavit,          which       was    offered    to      establish

                                               8
probable cause for the warrant, sets forth a number of facts

that support a finding that contraband was reasonably likely to

be found in Foster’s residence on February 2, 2009. 4                               See, e.g.,

J.A. at 33, 35 (surveillance demonstrated Foster conducted daily

crack      cocaine    distribution             activities       out    of    his   home,    from

October      24,    2008     to    February       2,    2009,    and    “intercepted        wire

communications”            revealed        Bruton       and      Foster       had     repeated

discussions         about    the        distribution       of    controlled        substances,

including one on January 26, 2009).                        No error has been shown as

to   the     warrant’s      issuance        or    the   district       court’s      denial   of

Foster’s motion to suppress.

                 Regarding    the       challenges       to     the   wiretap      orders,    we

address      only    those        issues    raised      by    the     Defendants      in   their

opening brief; the remainder are deemed waived.                               See Cavallo v.

Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996) (“[A]n

issue first argued in a reply brief is not properly before a

court of appeals.”).                 In their opening brief, the Defendants

make       two   challenges        to    the     initial      wiretap       warrant   and    the

denial of their motions to suppress evidence obtained through

the wiretap warrants. 5                  First, they contend that the wiretap


       4
       Guzzo’s affidavit was signed and sworn on February 2,
2009, the same date the warrant was issued.
       5
       In two separate footnotes in their opening brief, Foster
and Fountain attempt to raise additional challenges.    Because
(Continued)
                                                  9
applications      were        not     supported      by      a    full     and       completed

statement of the facts, pointing to the application of AUSA Rose

as    lacking    in     such    detail.            Second,       they    argue       that   the

necessity requirement was not met.

              As to the contention that the wiretap application did

not   comply    with     18    U.S.C.     §    2518(1)(c)         because       it    did   not

contain   a     “full    and        complete   statement”          of     the    facts,     the

Defendants      claim    that       our   review     is   limited         to    AUSA    Rose’s

application      and     that        Guzzo’s       affidavit,           although       it   was

incorporated by reference, cannot be considered. 6                         In particular,

they allege that defense counsel did not have access to Guzzo’s

affidavit.       There is nothing in the record and the Defendants

cite to nothing, however, to support their assertion that trial

counsel did not have a copy of the affidavit or could not have

obtained it, had it been requested.                    Moreover, it is undisputed

that the district court had Guzzo’s affidavit when it issued the

wiretap warrant.          Thus, we may consider Guzzo’s affidavit in

determining whether the application complied with § 2518(1)(c).



neither is adequately briefed, we deem these issues abandoned.
In any event, we have reviewed those challenges and conclude
they are without merit.
      6
       Guzzo’s affidavit is in the supplemental joint appendix
and is properly before this Court.  Additionally, the district
court had the affidavit before it when it issued its wiretap
order.



                                              10
Review    of       the     application       and     Guzzo’s        affidavit    clearly

demonstrates that the “full and complete” information required

by § 2518(1) was supplied to the court.                            No error has been

shown.

              As     to     the     related        challenge,        i.e.,     that     the

applications did not contain the requisite showing of necessity,

we find no abuse of discretion.                    See United States v. Wilson,

484 F.3d 267, 280 (4th Cir. 2007) (determination of “necessity”

under 18 U.S.C. § 2518(3)(c) for issuance of a wiretap warrant

is reviewed for abuse of discretion).                        In Wilson, the Fourth

Circuit explained the necessity requirement as follows:

       Congress has placed a burden on the Government to show
       the “necessity” of any wiretap application via a full
       and   complete    statement    as  to    whether   “normal
       investigative procedures have been tried and have
       failed or reasonably appear to be unlikely to succeed
       if tried or to be too dangerous.” 18 U.S.C. § 2518(3).
       The burden that this provision imposes on the
       Government, however, is not great, and the adequacy of
       such a showing is to be tested in a practical and
       commonsense fashion that does not hamper unduly the
       investigative   powers    of   law   enforcement   agents.
       Although   wiretaps    are   disfavored    tools  of   law
       enforcement, the Government need only present specific
       factual information sufficient to establish that it
       has   encountered    difficulties   in   penetrating   the
       criminal enterprise or in gathering evidence [such
       that] wiretapping becomes reasonable.

Wilson,      484    F.3d   at     281    (citations       and     quotations    omitted);

brackets in original.

              The    Defendants         contend    that     the    government    did    not

meet   the    necessity      requirement          because       investigators    were   in

                                             11
fact successful in identifying certain co-conspirators and in

conducting some controlled buys and drug seizures leading to

arrests.        Thus, they argue other investigative techniques were

sufficient.        We    disagree.      The    investigation      here    was    of   a

large-scale conspiracy with an extended network of suppliers and

purchasers.        Guzzo’s affidavit contains more than nine pages

devoted to explaining why alternative measures had either been

tried    and    failed,   or   appeared       unlikely    to   succeed,    and   that

explanation contains information particular to this case.

               In reviewing the adequacy of the showing here in “a

practical and commonsense fashion . . . that does not ‘hamper

unduly    the    investigative       powers    of   law   enforcement     agents,’”

United    States    v.    Smith,   31   F.3d    1294,     1297   (4th    Cir.    1994)

(citation omitted), we conclude that the showing of necessity

was sufficient.         The district court did not abuse its discretion

in issuing the initial wiretap order or in denying the motion to

suppress.



                                         C.

               Both Fountain and Foster argue there was insufficient

evidence to support their convictions.                    Fountain argues that

there was only “threadbare” circumstantial evidence to find she

knowingly participated in a conspiracy.                    The Defendants also

argue that the evidence adduced at trial was insufficient to

                                         12
prove    they     knowingly       participated        in    a     single         conspiracy.

Instead, they contend that “the evidence merely shows multiple

buyer    and     seller    relationships         without        an    understanding        or

agreement between the various parties.”                    Appellants’ Br. at 31. 7

            A jury’s guilty verdict will be upheld if, viewing the

evidence    in    the     light    most    favorable        to       the    Government,     a

rational factfinder could have found each element of the charged

offense beyond a reasonable doubt.                    United States v. Madrigal-

Valadez, 561 F.3d 370, 374 (4th Cir. 2009).                          An appellate court

“may not weigh the evidence or review the credibility of the

witnesses”       because    “[t]hose      functions         are      reserved      for    the

jury.”     United States v. Wilson, 118 F.3d 228, 234 (4th Cir.

1997).     “A defendant challenging the sufficiency of the evidence

faces a heavy burden.” United States v. Foster, 507 F.3d 233,

245 (4th Cir. 2007).

            Fountain       argues    that       the   evidence         against      her   was

scant and insufficient to find she was a participant in the

conspiracy.        We     disagree   and    conclude        there          was   substantial

evidence to support the jury’s guilty verdict. In short, there


     7
       In a related argument, the Defendants claim that the
government’s use of “multiple conspiracies as evidence to
support an indictment for a single conspiracy” is a material
variance.   Appellants’ Br. at 34. Because we conclude that the
jury’s   finding  of   a  single   conspiracy is  supported  by
substantial evidence, there was no variance.



                                           13
was no clear failure by the prosecution here.                  See Foster, 507

F.3d at 244-45.

           We likewise find unconvincing the argument that there

was insufficient evidence of a single conspiracy.                     Under this

Court’s precedent, “trial evidence is sufficient to establish a

single conspiracy where the conspirators are shown to share the

same objectives, the same methods, the same geographic spread,

and the same results.”           United States v. Smith, 451 F.3d 209,

218 (4th Cir. 2006); United States v. Jeffers, 570 F.3d 557, 567

(4th   Cir.     2009)   (“[A]    single      conspiracy     exists,    when     the

conspiracy had the same objective, it had the same goal, the

same nature, the same geographic spread, the same results, and

the same product.”)(citation omitted). Furthermore, “a defendant

may be convicted of conspiracy with little or no knowledge of

the entire breadth of the criminal enterprise[.]”                  United States

v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc).                   This is

particularly true in “contemporary drug conspiracies” which may

“frequently . . . result[] in only a loosely-knit association of

members linked only by their mutual interest in sustaining the

overall   enterprise      of   catering      to   the   ultimate   demands     of   a

particular drug consumption market . . . .” United States v.

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

           At    trial,    the   jury     heard    evidence   that    Foster    had

continuing drug-related relationships with numerous individuals

                                        14
whose concerted efforts resulted in the distribution of large

quantities of crack cocaine in western North Carolina.                             The jury

also heard evidence from which it could infer that Bruton was a

participant in a conspiracy with Foster, a conspiracy to which

Bruton pled guilty.             The jury could also infer that Fountain was

aware of and assisted Bruton in this drug-dealing based on her

conduct when the search warrant was executed at her residence

and her August 2008 cash transaction.                      A reasonable jury could

construe her acts after the search warrant was executed as an

attempt to destroy evidence of the conspiracy of which she was a

part.

            Having reviewed the trial record and keeping in mind

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

of   the   evidence       and    resolves     any    conflicts       in    the     evidence

presented,” Burgos, 94 F.3d at 862 (internal quotation mark and

citation        omitted),       we   conclude       that    there     was        sufficient

evidence from which the jury could conclude that Fountain and

Foster were part of a single charged conspiracy.                          Therefore, the

challenges raised to their convictions fail.



                                            D.

            Foster        raises      three      challenges     to        his     sentence.

First,     he    argues     the      district     court     erred     in        applying   a

leadership enhancement pursuant to U.S.S.G. § 3B1.1.                             Second, he

                                            15
argues    his   sentence        is    procedurally        unreasonable       due    to   the

district      court’s     failure      to    adequately        explain   the       sentence

imposed.        Third,     he     contends     the       district   court     failed      to

address his argument that he was entitled to a sentence below

the   advisory        guideline      range    both:      (1)   because   his       criminal

history category and status as a career offender overstated his

criminal record; and (2) because of the disparity inherent in

the guidelines between sentences for offenses involving crack

cocaine and offenses involving powder cocaine. 8

              With regard to the district court’s imposition of a

leadership adjustment for Foster, that decision is a “factual

determination         reviewed       for    clear    error.”        United    States      v.

Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009) (citation omitted).

In    order     for     the     four-level        role     adjustment    in        U.S.S.G.

§ 3B1.1(a) to apply, the court must find that a defendant was

“an organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive.”                             Both the

      8
       Fountain also challenges on appeal the district court’s
refusal to impose a below-guidelines sentence based on the
crack-powder cocaine disparity.    Like Foster’s, her claim is
unreviewable. (See infra at 18.) Additionally, because Fountain
was sentenced to the mandatory minimum sentence as set forth in
the statute of conviction, the district court could not have
imposed a sentence lower than what she received. See Kimbrough
v. United States, 552 U.S. 85, 106-08 (2007)(district courts may
deviate from the guidelines based on disagreements with the
crack/powder ratio, but remain bound by statutory mandatory
minimum sentences).



                                             16
trial evidence and a review of the facts of the offense as set

forth   in    the   Presentence     Investigation     Report   show   that     the

district     court’s    finding      was     not   clearly   erroneous.        We

therefore reject this claim.

             While the parties disagree as to the proper standard

of review for Foster’s claim that the court failed to adequately

explain      his    sentence,   we     need    not   resolve    the    dispute.

Regardless of which standard is applied, no error or abuse of

discretion has been shown.           It is procedural error to “fail[] to

adequately explain the chosen sentence—including an explanation

for any deviation from the Guidelines range.” Gall v. United

States, 552 U.S. 38, 51 (2007).                In this case, the 360-month

sentence imposed was the bottom end of the advisory guideline

range; thus, the explanation required need not be “elaborate or

lengthy.” United States v. Hernandez, 603 F.3d 267, 271 (4th

Cir. 2010).         The court must, however, “make an individualized

assessment     based    on   the     facts    presented”     when   imposing    a

sentence within the proper guidelines range. Gall, 552 U.S. at

50.

             Having reviewed the district court’s reasons for its

imposition of sentence, we find that explanation reflects that

the court was engaging in an individual analysis of Foster’s

offense and background and it explicitly addressed a number of

the § 3553(a) factors.             Thus, we conclude the district court

                                        17
gave     sufficient      explanation         for    its    selection          of    Foster’s

sentence.

            Foster’s         final   argument      is     that   the    district         court

erred in refusing to downwardly depart, because of the crack-

powder    cocaine      disparity     in   the      guidelines      or       because    of    an

overrepresented         criminal      history.            That     decision         is      not

reviewable on appeal absent some indication that the district

court “failed to understand its authority” to impose a lesser

sentence.       United States v. Herder, 594 F.3d 352, 362 (4th Cir.

2010) (citation omitted).            Nothing said by the district court in

Foster’s case suggests that it thought it could not depart from

the guidelines range.           Thus, this Court may not presume that the

district court thought it lacked such authority.                             Id. (“[W]hen

the sentencing court is silent regarding its reason for refusing

a    departure    or    a    variance     sentence,       the    appellate         court    is

precluded from inferring that the sentencing court believed that

it     lacked    the     authority      to    do     so.”)       (citation         omitted).

Accordingly, we do not review the district court’s decision not

to impose a sentence below the advisory guidelines range.



                                          III.

            For        the    aforementioned         reasons,          we     affirm        the

judgments of the district court.

                                                                                    AFFIRMED

                                             18
