                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-5090



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


FRANK D. SNYDER,

                                            Defendant - Appellant.


                              No. 04-5122



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


STEFAN VALENTI MOSLEY,

                                            Defendant - Appellant.


Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
03-194)


Submitted:   April 26, 2006                 Decided:   June 9, 2006
Before LUTTIG,1 MICHAEL, and MOTZ, Circuit Judges.


No. 04-5090 affirmed in part, vacated in part, and remanded; No.
04-5122 affirmed by unpublished per curiam opinion.


Elita C. Amato, Washington, D.C., Joseph J. Gigliotti, Silver
Spring, Maryland, for Appellants. Rod J. Rosenstein, United States
Attorney, Deborah Johnston, Chan Park, Assistant United States
Attorneys, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




     1
      Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).

                              - 2 -
PER CURIAM:

               Frank D. Snyder and Stefan Valenti Mosley appeal their

convictions and sentences for conspiracy to distribute narcotics in

violation of 21 U.S.C. § 846 (2000), and possession with intent to

distribute cocaine in violation of 21 U.S.C. § 841(b)(1) (2000).

Mosley also appeals his conviction and sentence for being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

(2000).    Finding no reversible error with Mosley’s conviction and

sentence, we affirm.       We affirm Snyder’s conviction, but we vacate

his    sentence    and   remand   for    resentencing    in   light   of   United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

               Snyder first claims that the district court erred in

denying his motion for a judgment of acquittal.                 We review the

denial of a motion for judgment of acquittal de novo.                      United

States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).               A verdict

must be sustained if there is substantial evidence, taking the view

most favorable to the Government, to support it. Glasser v. United

States, 315 U.S. 60, 80 (1942). Substantial evidence is defined as

“that evidence which ‘a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.’”              United States v. Newsome, 322

F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94

F.3d    849,    862-63   (4th   Cir.    1996)).     In   resolving    issues   of

substantial evidence, we do not weigh evidence or reassess the


                                        - 3 -
factfinder’s assessment of witness credibility.   United States v.

Sun, 278 F.3d 302, 313 (4th Cir. 2002).

          To prove conspiracy under 21 U.S.C. § 841 (2000), the

Government must prove an agreement to violate a federal drug law,

the defendant’s knowledge of the conspiracy, and the defendant’s

willing participation.   United States v. Strickland, 245 F.3d 368,

384-85 (4th Cir. 2001). A defendant may be convicted of conspiracy

without knowing all the conspiracy’s details, as long as he joins

the conspiracy understanding its unlawful nature and willfully

joins in the plan on at least one occasion.     Burgos, 94 F.3d at

857.   Once the existence of a conspiracy is established, only a

slight link between a defendant and the conspiracy is needed to

support a conviction. United States v. Brooks, 957 F.2d 1138, 1147

(4th Cir. 1992).     The knowledge and participation elements of

conspiracy may be shown by circumstantial evidence.    Strickland,

245 F.3d at 385.

          While Snyder concedes the existence of a drug conspiracy

led by Mosley, he claims the evidence of his drug activity does not

link him to Mosley’s conspiracy. However, the Government presented

sufficient testimonial and written evidence to prove that Snyder

participated in the conspiracy.     The Government also presented

sufficient evidence that Snyder possessed cocaine on or around

February 24, 2003.   The district court correctly denied Snyder’s

motion for judgment of acquittal.


                               - 4 -
            Snyder also contends the district court erred when it

denied his motion for severance.              We review the denial of a

pretrial ruling on a motion for severance for abuse of discretion.

United States v. Rivera, 412 F.3d 562, 571 (4th Cir. 2005).

Generally, individuals indicted together should be tried together

and “[a] defendant is not entitled to severance merely because

separate trials would more likely result in acquittal, or because

the evidence against one defendant is not as strong as that against

the other.”    Strickland, 245 F.3d at 384.       A defendant must instead

“show prejudice . . . [c]onvictions should be sustained if it may

be inferred from the verdicts that the jury meticulously sifted the

evidence.”     United States v. Porter, 821 F.2d 968, 972 (4th Cir.

1987).

            Snyder   claims   that    evidence   only     related    to   Mosley

prejudiced the jury against him.             However, Snyder is unable to

prove any actual prejudice and only claims the potential prejudice

of the jury grouping him together with Snyder’s actions. Claims of

potential     prejudice   generally    are    addressed    through    limiting

instructions to the jury.       See Zafiro v. United States, 506 U.S.

534, 539 (1993); United States v. Hayden, 85 F.3d 153, 160 (4th

Cir. 1996). The district court specifically instructed the jury to

deliberate upon each defendant and each count separately.                 Snyder

did not suffer prejudice simply because the evidence was stronger

against Mosley than against him.        See Strickland, 245 F.3d at 384;


                                     - 5 -
United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999).               The

district court did not abuse its discretion in denying Snyder’s

motion for severance.

            Snyder next claims that the district court erred when it

admitted evidence of two incidents in 1998.           We review a district

court’s decision regarding the admission or exclusion of evidence

for abuse of discretion.     United States v. Lancaster, 96 F.3d 734,

744 (4th Cir. 1996).         Such discretion is abused only when a

district court has acted “arbitrarily or irrationally.”                 United

States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994).

            At trial, a police detective testified that in October

1998   he   observed    Snyder     participating    in   hand-to-hand      drug

transactions   near     Burnside    Avenue   in    Palmer   Park,   Maryland.

Another police officer testified that in November 1998 during a

traffic stop on a car driven by Snyder he observed cocaine stuck to

the passenger side door.           Snyder objected to this evidence as

inadmissable prior bad acts evidence under Fed. R. Crim. P. 404(b).

Rule 404(b) only applies to acts extrinsic to the crime charged.

Where testimony is admitted as to acts intrinsic to the crime

charged, and is not admitted solely to demonstrate bad character,

it is admissible.      United States v. Chin, 83 F.3d 83, 88 (4th Cir.

1996).   Acts are intrinsic when they are “inextricably intertwined

or both acts are part of a single criminal episode or the other

acts were necessary preliminaries to the crime charged.”             Id.   The


                                     - 6 -
indictment charged an ongoing narcotics conspiracy from 1998 to

2003 involving the sale of cocaine on the streets of Palmer Park.

The evidence places Snyder at a location where drug transactions

were occurring early in the time frame of the conspiracy.                The

district court did not abuse its discretion because the evidence

was inextricably intertwined with the drug conspiracy as it arose

out of the same series of transactions as the charged offense.

           Snyder and Mosley finally claim that the district court

improperly sentenced them under Booker.          In Booker, the Supreme

Court   concluded   the     mandatory   manner   in   which    the   federal

sentencing     guidelines    required   courts   to   impose     sentencing

enhancements based on facts found by the judge by a preponderance

of the evidence violated the Sixth Amendment.         Booker, 125 S. Ct.

at 746, 750.    Because they preserved this claim by objecting under

Blakely v. Washington, 542 U.S. 296 (2004), our review is for

harmless error. See United States v. Rodriguez, 433 F.3d 411, 415-

16 (4th Cir. 2006).

           Mosley claims the district court erred by sentencing him

under the pre-Booker mandatory guidelines framework.             While the

district court sentenced him under the then-mandatory sentencing

guidelines, “Booker did nothing to alter the rule that judges

cannot depart below a statutorily provided minimum sentence. . . .

[A] district court has no discretion to impose a sentence outside

of the statutory range established by Congress for the offense of


                                   - 7 -
conviction.”     United States v. Robinson, 404 F.3d 850, 862 (4th

Cir. 2005).     As Mosley had two prior felony drug convictions, he

was subject to a mandatory sentence of life imprisonment under 21

U.S.C. § 841(b)(1)(A). Because the district court sentenced Mosley

pursuant to the mandatory statutory requirement, no error occurred

under Booker.

          For Snyder, the jury specifically found drug quantities

of a total of at least five kilograms of cocaine, fifty grams or

more of cocaine base, and one kilogram of PCP.   Based on the jury’s

findings, Snyder should only have received a base offense level of

thirty-two under U.S. Sentencing Guidelines Manual § 2D1.1(c)(4)

(2004).   At sentencing, the district court found quantities of

drugs far in excess of the level necessary for a base offense level

of thirty-eight under USSG § 2D1.1(c)(1).   The district court also

used judicially found facts not found by the jury to enhance

Snyder’s sentence two offense levels for possession of a firearm

under USSG § 2D1.1(b)(1).     The district court’s factual findings

increased Snyder’s sentencing range from 168 to 210 months to 360

months to life imprisonment.      Snyder’s 360 month sentence thus

exceeds the sentence that could have been imposed based only on the

facts found by the jury.     In light of Booker, we vacate Snyder’s

sentence and remand the case for resentencing.2        Although the


     2
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the

                                - 8 -
sentencing guidelines are no longer mandatory, Booker makes clear

that a sentencing court must still “consult [the] Guidelines and

take them into account when sentencing.”        125 S. Ct. at 767.    On

remand, the district court should first determine the appropriate

sentencing range under the Guidelines, making all factual findings

appropriate for that determination.       See United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005) (applying Booker on plain error

review).   The court should consider this sentencing range along

with the other factors described in 18 U.S.C. § 3553(a) (2000), and

then impose a sentence.     Id.   If that sentence falls outside the

Guidelines range, the court should explain its reasons for the

departure as required by 18 U.S.C. § 3553(c)(2) (2000).         Id.   The

sentence must be “within the statutorily prescribed range and . . .

reasonable.”   Id. at 546-47.

           Accordingly, we affirm Mosley’s conviction and sentence.

We affirm Snyder’s conviction.       In light of Booker, we vacate

Snyder’s sentence and remand for resentencing.          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.

                                          No. 04-5090 AFFIRMED IN PART,
                                          VACATED IN PART, AND REMANDED
                                                   No. 04-5122 AFFIRMED




time” of Snyder’s sentencing.

                                  - 9 -
