UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 96-4710

GLENN WADE MCFADDEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-96-91-A)

Submitted: May 29, 1997

Decided: June 17, 1997

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Charles G. Aschmann, Jr., ASCHMANN & ASCHMANN, Alexan-
dria, Virginia, for Appellant. Helen F. Fahey, United States Attorney,
Robert A. Spencer, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Glenn Wade McFadden was convicted by a jury of three counts of
bank robbery, 18 U.S.C. § 2113(a) (1994), and one count of conspir-
acy to commit bank robbery, 18 U.S.C. § 371 (1994), and was subse-
quently sentenced to 168 months imprisonment. On appeal,
McFadden challenges the sufficiency of the evidence and the district
court's denial of a downward departure during sentencing. Finding no
error, we affirm.

At trial, Richard Day testified that over a period of two months he
and McFadden robbed or attempted to rob several banks. He stated
that typically, McFadden would drive and case the bank. Day would
then proceed into the bank, present the demand note, and take the
money. They would then divide the profits. Furthermore, at least two
bank employees identified McFadden as the individual casing the
banks just before the subject robberies. The Government also intro-
duced into evidence bank surveillance photographs of McFadden
taken during one of the subject robberies. McFadden was appre-
hended on the day of the last two robberies after a high-speed chase.
At this time, police discovered a demand note, the same clothing that
appeared in the bank surveillance photographs, dye-stained currency
and clothes, and bait bills in his car. Lastly, McFadden after waiving
his rights, admitted to the FBI that he robbed a series of banks with
Day.

We must sustain a jury's verdict if there is substantial evidence to
support it, taking the view most favorable to the Government. See
Glasser v. United States, 315 U.S. 60, 80 (1942). This Court does not
weigh the evidence or review the credibility of witnesses in resolving
issues of substantial evidence. United States v. Saunders, 886 F.2d 56,
60 (4th Cir. 1989).

To support a conviction of bank robbery under § 2113(a), the Gov-
ernment must prove that the defendant took, from a person or in the
presence of another, money belonging to or in the custody of, a feder-
ally insured savings and loan or bank, by force or intimidation. 18
U.S.C. § 2113(a). To sustain a conspiracy conviction, the government

                    2
must prove: (1) the existence of a conspiracy, (2) that the defendant
knew of the conspiracy, and (3) that the defendant voluntarily became
a part of the conspiracy. United States v. Burgos, 94 F.3d 849, 857
(4th Cir. 1996) (en banc). Knowledge and participation in the conspir-
acy may be proved by circumstantial evidence. Id.; see also United
States v. Meredith, 824 F.2d 1418, 1428 (4th Cir. 1987). Viewing the
evidence in the light most favorable to the Government, we find it
sufficient for a rational jury to find defendant guilty beyond a reason-
able doubt of both crimes.

McFadden also maintains that the district court erred in denying
him a downward departure during sentencing on the grounds that his
co-conspirator received a lighter sentence and because his criminal
history category was overstated. It is well established that a defendant
may not challenge a sentence merely because of the disparity between
his sentence and a co-conspirator's sentence. United States v. Ellis,
975 F.2d 1061, 1065-66 (4th Cir. 1992) (absent proof of actual pro-
secutorial misconduct, no downward departure based on disparity of
sentences among co-defendants). Furthermore, the district court's
refusal to depart below the guideline range is not reviewable on
appeal unless the court mistakenly believes it lacks authority to
depart. United States v. Dorsey, 61 F.3d 260, 263 (4th Cir. 1995).
Here, there is no indication from the record that the district court mis-
takenly believed that it did not have the ability to depart. We therefore
do not review the court's refusal to depart downward.

Accordingly, we affirm McFadden's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

                    3
