                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4254


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JARED JAMILE FITZGERALD,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.    Jackson L. Kiser, Senior
District Judge. (4:10-cr-00006-jlk-1)


Submitted:   October 27, 2011             Decided:   November 4, 2011


Before KING, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John Weber, III, WEBERPEARSON, PC, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jared Jamile Fitzgerald was convicted by a jury of

conspiracy to distribute and possess with intent to distribute

cocaine    base,    in    violation       of       21   U.S.C.     § 841(a)(1)         (2006)

(Count One); distribution of cocaine base, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C) (2006) (Counts Three and Five);

possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c) (2006) (Count Four);

and commission of a criminal offense while on pretrial release,

in   violation     of    18    U.S.C.    § 3147         (2006)     (Count      Six).     The

district    court       imposed    a    total       sentence       of    169    months    of

imprisonment, and Fitzgerald timely appealed.                       We affirm.

            On   appeal,       Fitzgerald         first     challenges       the   district

court’s denial of his Rule 29 motions for judgment of acquittal,

contending that the evidence was insufficient to support his

convictions.       We review the district court’s denial of a motion

for a judgment of acquittal de novo.                        United States v. Green,

599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct. 271

(2010).     We     are   obligated       to       sustain    a   guilty      verdict     “if,

viewing    the     evidence       in    the       light     most    favorable      to    the

prosecution,       the        verdict     is        supported           by     ‘substantial

evidence.’”      United States v. Smith, 451 F.3d 209, 216 (4th Cir.

2006) (citations omitted).               Substantial evidence is “evidence

that a reasonable finder of fact could accept as adequate and

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sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”              Id. (internal quotation marks and citation

omitted).

              A     defendant        challenging      the     sufficiency     of    the

evidence faces a heavy burden.                   United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).                   Furthermore, “[t]he jury, not

the reviewing court, weighs the credibility of the evidence and

resolves any conflicts in the evidence presented.”                         Id. 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).               With these standards in mind, we have

reviewed      the        record     and   conclude     that     the     evidence    was

sufficient to support Fitzgerald’s convictions.

              Fitzgerald          next    argues     that     the     district     court

violated his Fifth Amendment right to fundamental fairness and

due process when it calculated his Sentencing Guidelines range

based on the determination that a preponderance of the evidence

supported an attributable drug weight of 164.68 grams of cocaine

base despite the jury’s determination beyond a reasonable doubt

that he was responsible for less than five grams.                          We review a

sentence for abuse of discretion.                    Gall v. United States, 552

U.S. 38, 51 (2007).               “The first step in this review requires us

to   ensure       that    the     district   court    committed       no   significant

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procedural error, such as . . . improperly calculating . . . the

Guidelines range.”        United States v. Osborne, 514 F.3d 377, 387

(4th Cir. 2008) (internal quotation marks and citation omitted).

            We review the district court’s findings of fact for

clear error.     United States v. Thompson, 554 F.3d 450, 452 (4th

Cir.   2009).      “Clear       error       occurs   when,       although     there      is

evidence    to   support      it,    the     reviewing     court       on   the    entire

evidence is left with the definite and firm conviction that a

mistake has been committed.”               United States v. Harvey, 532 F.3d

326,   336-37    (4th    Cir.       2008)     (internal     quotation        marks      and

citations omitted).           “[W]hen a district court’s factual finding

is based upon assessments of witness credibility, such finding

is   deserving   of     the    highest      degree    of   appellate        deference.”

Thompson, 554 F.3d at 452 (internal quotation marks and citation

omitted).

            We have expressly authorized lower courts to consider

acquitted or uncharged conduct in establishing drug amounts in

sentencing.      United       States     v.      Watts,    519    U.S.      148,   156-57

(1997); United States v. Perry, 560 F.3d 246, 258 (4th Cir.

2009).      Indeed,     the    sentencing         court    is    not   bound       by   the

evidence presented at trial when determining drug quantity or

other relevant conduct and must consider reliable evidence of

relevant conduct.         United States v. Young, 609 F.3d 348, 358

(4th Cir. 2010).

                                             4
            We conclude that the district court did not err in its

determination that a preponderance of evidence established that

Fitzgerald was responsible for 164.68 grams of cocaine base.

Furthermore, the explanation offered by the district court for

its     chosen   sentence      was   sufficient     to    demonstrate     its

individualized assessment of the circumstances of Fitzgerald’s

case.    Consequently, Fitzgerald’s challenges to his sentence are

without merit.

            Accordingly, we 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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