UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 97-4408

MARK CLIFTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 97-4409

CHAWN THOMPSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-96-62-H)

Submitted: September 29, 1998

Decided: October 28, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

No. 97-4408 affirmed and No. 97-4409 affirmed in part, vacated in
part, and remanded by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

H. Gerald Beaver, Richard B. Glazier, BEAVER, HOLT, RICHARD-
SON, STERNLICHT, BURGE & GLAZIER, P.A., Fayetteville,
North Carolina; Joseph B. Gilbert, MCNEIL & GILBERT, Jackson-
ville, North Carolina, for Appellants. Janice McKenzie Cole, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
John Howarth Bennett, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Chawn Thompson and Mark Clifton of conspir-
acy to distribute and possess with intent to distribute crack cocaine
and Clifton of possession with intent to distribute crack. Thompson
and Clifton appeal their convictions on the ground that the evidence
was insufficient. Thompson also appeals his sentence, challenging the
two-point enhancement for obstruction of justice resulting from per-
jury at trial under U.S. Sentencing Guidelines Manual § 3C1.1 (1995),
on the ground that the district court's findings were inadequate under
United States v. Dunnigan, 507 U.S. 87 (1993). We affirm Thomp-
son's and Clifton's convictions but vacate Thompson's sentence and
remand for the district court to resentence Thompson.

I.

Taking the evidence in the light most favorable to the government,
see Glasser v. United States, 315 U.S. 60, 80 (1942), testimony at trial
disclosed that postal inspectors intercepted two packages from New
York, each addressed to Steven Wilson, 34 Teakwood Lane, Clinton,
North Carolina. The packages were from Mary Johnson and Kelly

                    2
Wilson, and each package bore a return address of 1267 Hancock
Street, Brooklyn, New York. Clifton lived at 1269 Hancock Street,
Brooklyn, New York.

Postal inspectors obtained a search warrant after a drug detection
dog indicated that the packages contained drugs. The larger package
was a cardboard box, wrapped in brown paper and duct tape. Inspec-
tors unwrapped the box and discovered inside the wrapping on the
edge of the box a fingerprint made by Clifton's left index finger. The
box contained 77.9 grams of crack cocaine. The smaller package con-
tained plastic bags typically used to repackage crack for sale. Because
postal inspectors, along with Drug Enforcement Administration
agents and local police officers, decided to make a controlled delivery
of the drugs, the packages were carefully rewrapped to appear as
though they had not been opened.

A postal inspector dressed as a letter carrier and went to deliver the
packages to Steven Wilson at 34 Teakwood Lane. As the inspector
approached the mobile home, Thompson came out and identified him-
self as Steven Wilson. Before handing Thompson the packages, the
inspector asked him if he was Steven Wilson and if he was expecting
anything, and Thompson said yes to both questions. Thompson
printed and signed the name Steven Wilson on the package receipts
and returned to the mobile home with the packages.

The inspector notified other agents that the packages had been
received, and agents executed a search warrant for the mobile home.
When agents entered, no one was in the mobile home. Agents posted
at the back of the trailer apprehended Clifton and Thompson. After
arresting them, agents discovered in the mobile home the small pack-
age and the cardboard box containing crack cocaine. The box was
unopened, except for one slice on the side of the box. Agents also
seized a backpack that contained packaging materials similar to those
in the small package. Thompson identified the backpack as his. In
addition, on a piece of an envelope found near the small package was
written "to Steven Wilson, from Mary Johnson, 1267 Hancock." Clif-
ton's mother's address appeared on the other side of the paper.

A jury found Clifton and Thompson guilty of conspiracy to distrib-
ute and to possess with intent to distribute crack cocaine and Clifton

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of possession with intent to distribute crack. The probation officer
prepared a presentence report for Thompson and recommended a two-
level enhancement under USSG § 3C1.1 for obstruction of justice
resulting from perjury at trial. Although Thompson objected at sen-
tencing, the district court applied the enhancement. The court found
that based on its recollection of the testimony and evidence in the
case, "the testimony in that background was false." (J.A. at 189).
Thompson received a 156-month prison term to be followed by five
years of supervised release.

II.

Clifton challenges his convictions on the ground that the evidence
was insufficient, and Thompson claims that the district court erred by
denying his motion for judgment of acquittal under Fed. R. Crim. P.
29. We review the denial of a motion for acquittal under a sufficiency
of evidence standard. See Fed. R. Crim. P. 29; United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998). In deciding whether the
evidence was sufficient, the relevant question is not whether the court
is convinced of guilt beyond a reasonable doubt, but rather whether
the evidence, when viewed in the light most favorable to the govern-
ment, was sufficient for a rational trier of fact to have found the
essential elements of the crime beyond a reasonable doubt. See United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-6868); Glasser, 315 U.S. at 80. If substantial evidence exists to
support a verdict, the verdict must be sustained. See Glasser, 315 U.S.
at 80.

To prove conspiracy to possess crack with intent to distribute, the
government must establish: (1) an agreement between two or more
persons to possess crack with intent to distribute it; (2) knowledge of
the conspiracy by the defendant; and (3) a knowing and voluntary
decision by the defendant to join the conspiracy. See Burgos, 94 F.3d
at 857. Agreement to participate in a conspiracy need not be proved
by direct evidence but may be inferred from circumstantial evidence.
See id. at 857-58.

The evidence at trial disclosed that Thompson identified himself to
the postal inspector as Steven Wilson and said that he was expecting

                    4
some packages. Thompson signed the package receipts with the name
Steven Wilson and took the packages inside the mobile home where
Clifton was visiting. One package contained crack cocaine, and the
other contained packaging materials typically used in distribution.
Similar packaging materials were found in a backpack that Thompson
identified as his. We find that the evidence was sufficient and that the
district court did not err in denying Thompson's Rule 29 motion. See
Romer, 148 F.3d at 364; Burgos, 94 F.3d at 857.

As for Clifton, the evidence at trial disclosed that his fingerprint
was on the cardboard box inside the wrapping. The senders' address
was 1267 Hancock Street, Brooklyn, New York, and Clifton resided
at 1269 Hancock Street. Clifton then traveled to North Carolina to see
Thompson at 34 Teakwood Lane, the address to which the packages
were sent. Under Burgos, we find that the evidence was sufficient to
convict Clifton of conspiracy. See Burgos, 94 F.3d at 857.

To establish that Clifton possessed a controlled substance with the
intent to distribute, the government must prove that: (1) the defendant
possessed the controlled substance both knowingly and intentionally;
and (2) with the intent to distribute. See United States v. Nelson, 6
F.3d 1049, 1053 (4th Cir. 1993). Possession may be actual or con-
structive and may be proven by circumstantial evidence. See id. Con-
structive possession exists when the defendant exercises, or has the
power to exercise, dominion or control over the item or the premises
in which the contraband is concealed. See id. Intent to distribute may
be inferred from quantities of drugs too large for personal consump-
tion. See id.

We find that the evidence was sufficient to convict Clifton of pos-
session with intent to distribute. His fingerprint was on the box inside
the wrapping, and the box was mailed to Steven Wilson at 34 Teak-
wood Lane, Clinton, North Carolina. Clifton traveled to meet Thomp-
son at his mobile home bearing the same address. Finally, the box
contained 77.9 grams of crack--an amount too large for personal con-
sumption. See id. From these facts, a rational trier of fact could have
found that Clifton possessed the crack knowingly and intentionally
and with an intent to distribute. See Burgos, 94 F.3d at 862.

While Clifton and Thompson provide different explanations for
what transpired, it is well established that the credibility of witnesses

                     5
is within the sole province of the fact finder and generally is unre-
viewable on appeal. See United States v. Wilson , 118 F.3d 228, 234
(4th Cir. 1997). Here, the jury was given the opportunity to hear the
government's evidence and Defendants' recitation of the facts. The
jury's apparent refusal to believe Defendants' version of the facts was
within its province and its guilty verdicts were supported by the evi-
dence. When viewed in the light most favorable to the government,
the evidence was sufficient to find the elements of both crimes as to
Clifton and Thompson beyond a reasonable doubt.

III.

Thompson also appeals his sentence, challenging the district
court's assessment of a two-level enhancement for obstruction of jus-
tice based on perjury at trial. Section 3C1.1 provides that the sentenc-
ing court may impose a two-level enhancement "[i]f the defendant
willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the investigation, prosecution, or
sentencing of the instant offense." USSG § 3C1.1.

In United States v. Dunnigan, 507 U.S. 87, 92-98 (1993), the
Supreme Court held that the sentencing court may impose an adjust-
ment pursuant to § 3C1.1 if it finds that defendant committed perjury
during the proceedings. A witness who testifies under oath or affirma-
tion commits perjury if he: (1) gives false testimony; (2) concerning
a material matter; (3) with the willful intent to deceive, rather than as
a result of confusion or mistake. See id. at 94; United States v. Smith,
62 F.3d 641, 646 (4th Cir. 1995). If defendant objects to such an
adjustment, "a district court must review the evidence and make inde-
pendent findings necessary to establish a willful impediment to, or
obstruction of, justice, or an attempt to do the same, under the perjury
definition" set out above. See Dunnigan, 507 U.S. at 95. The district
court should address each element of the alleged perjury in a separate
finding. See id. However, the district court's decision to adjust defen-
dant's sentence will suffice as long as "the court makes a finding of
an obstruction of, or impediment to, justice that encompasses all of
the factual predicates for a finding of perjury." Id.

In Dunnigan, the district court had stated:

                     6
          "The court finds that the defendant was untruthful at trial
          with respect to material matters in this case.[B]y virtue of
          her failure to give truthful testimony on material matters
          that were designed to substantially affect the outcome of the
          case, the court concludes that the false testimony at trial
          warrants an upward adjustment by two levels."

Dunnigan, 507 U.S. at 95 (quoting district court opinion) (alteration
in original). The Supreme Court concluded that the district court's
finding sufficiently encompassed all of the factual predicates for a
perjury finding, and the Court therefore affirmed the district court's
adjustment. See id.

At Thompson's sentencing, the district court imposed a two-level
enhancement pursuant to § 3C1.1, finding that"the testimony . . . was
false." (J.A. at 189). Thus, the district court clearly did not address
each element of Thompson's alleged perjury in a separate finding.
Nor did the court's limited finding "encompass[ ] all of the factual
predicates for a finding of perjury." Dunnigan, 507 U.S. at 95. The
court's finding encompassed only the first factual predicate for a per-
jury finding, namely that Thompson gave false testimony. The district
court did not specify the testimony in question, did not address
whether the testimony related to a material matter, and did not address
whether Thompson wilfully intended to give false testimony or
whether the false testimony resulted from confusion or mistake.
Because the district court failed to make the factual findings neces-
sary to support an enhancement under USSG § 3C1.1, we remand for
the district court to resentence Thompson. See Dunnigan, 507 U.S. at
95; Smith, 62 F.3d at 647 (remanding for resentencing where district
court simply stated, "All right. Well, I will deny the objection to the
increase for obstruction of justice.").

IV.

Accordingly, we affirm Clifton's and Thompson's convictions. We
vacate Thompson's sentence and remand for the district court to
resentence Thompson, solely to permit the district court to reconsider
the obstruction of justice adjustment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the

                    7
materials before the court and argument would not aid the decisional
process.

   No. 97-4408 - AFFIRMED
        No. 97-4409 - AFFIRMED IN PART, VACATED
                 IN PART, AND REMANDED

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