                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4985


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LAMATAVOUS REGTEZ COLLINS, a/k/a Red,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:10-cr-00466-MBS-3)


Submitted:   August 8, 2012                 Decided:   August 23, 2012


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gregory P. Harris, HARRIS & GASSER, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney,   J.D.  Rowell,   Assistant   United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               A federal jury convicted Lamatavous Regtez Collins of

conspiracy to possess with intent to distribute and distribute

cocaine and marijuana, in violation of 21 U.S.C. § 846 (2006).

The    district      court      sentenced      Collins     to     360       months    of

imprisonment, and he now appeals.              Finding no error, we affirm.

               Collins first argues that the district court erred in

denying     his   motion     to    suppress     statements       he    made    to    the

Government pursuant to a proffer agreement, admissible by virtue

of    his   violation      of     that   agreement,      where    the       Government

provided Collins with phone calls, recorded by a cooperating

witness, after the parties entered into the proffer agreement.

“In reviewing a district court’s ruling on a motion to suppress,

we    review    factual    findings      for   clear     error,       and   its     legal

conclusions de novo.”           United States v. Cain, 524 F.3d 477, 481

(4th Cir. 2008) (citation omitted); see also United States v.

Caro, 597 F.3d 608, 616 (4th Cir. 2010) (reviewing an alleged

Brady v. Maryland, 373 U.S. 83 (1963) violation de novo).                            When

the district court has denied a defendant’s suppression motion,

we construe the evidence in the light most favorable to the

government.       United States v. Grossman, 400 F.3d 212, 216 (4th

Cir. 2005).

               “In Brady, the Supreme Court announced that the Due

Process     Clause   requires      the   government      to   disclose        ‘evidence

                                          2
favorable to an accused upon request . . . where the evidence is

material either to guilt or to punishment.’”                  Caro, 597 F.3d at

619 (citing Brady, 373 U.S. at 87).                   In order to establish a

Brady violation, Collins must demonstrate that the evidence at

issue is favorable to him, either because it is exculpatory or

impeaching; the evidence was suppressed by the Government; and

that   he    was    prejudiced    by   that      suppression.        Strickler     v.

Greene,     527    U.S.   263,   281-82    (1999).      Favorable     evidence     is

material     if    the    defendant    can     demonstrate    that    there   is    a

reasonable probability that, had the evidence been disclosed,

the outcome of the proceeding would have been different.                      Caro,

597 F.3d at 619.           We have thoroughly reviewed the record and

conclude that the district court did not err in concluding that

the challenged evidence was not favorable to Collins as it was

not exculpatory or impeaching.

             Collins      next    argues       that   there   was    insufficient

evidence to support the verdict.                We review a district court’s

decision to deny a Fed. R. Crim. P. 29 motion for a judgment of

acquittal de novo.           United States v. Smith, 451 F.3d 209, 216

(4th Cir. 2006).          A defendant challenging the sufficiency of the

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

F.3d 1064, 1067 (4th Cir. 1997).                The verdict of a jury must be

sustained “if, viewing the evidence in the light most favorable

to the prosecution, the verdict is supported by ‘substantial

                                           3
evidence.’”          Smith,       451    F.3d     at    216     (citations       omitted).

Substantial evidence is “evidence that a reasonable finder of

fact   could     accept      as    adequate       and   sufficient      to       support   a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

Id.      (internal        quotation        marks        and      citation        omitted).

Furthermore, “[t]he jury, not the reviewing court, weighs the

credibility of the evidence and resolves any conflicts in the

evidence    presented.”             Beidler,      110     F.3d    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).

            In order to prove that Collins conspired to possess

with intent to distribute and distribute marijuana and cocaine,

the Government needed to show (1) an agreement between two or

more   persons,      (2)     that       Collins    knew    of    the   agreement,        and

(3) that        Collins      knowingly          and     voluntarily          joined      the

conspiracy.       United States v. Burgos, 94 F.3d 849, 857 (4th Cir.

1996) (en banc).           However, the Government was not required to

make     this    showing      through      direct       evidence.           In   fact,     “a

conspiracy may be proved wholly by circumstantial evidence,” and

therefore may be inferred from the circumstances presented at

trial.      Id. at 858.             Our review of the record leads us to

conclude    that     there    was       substantial       evidence     to    support     the

                                             4
jury’s finding of guilt.             We reject Collins’ invitation that we

substitute our weighing of the evidence or assessment of the

credibility of the witnesses for the determinations made by the

jury.

              Finally, Collins argues that the district court erred

in   calculating         the   advisory    Guidelines        range     by    incorrectly

calculating        the    amount   of   drugs      attributable        to    Collins   and

applying      an    enhancement      for      possession     of    a    firearm.        In

reviewing       the       district      court’s          calculations        under     the

Guidelines, we “review the district court’s legal conclusions de

novo    and    its       factual   findings        for    clear    error.”           United

States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal

quotation     marks      and   citation    omitted).         We    will      “find   clear

error only if, on the entire evidence, we are left with the

definite and firm conviction that a mistake has been committed.”

Id. at 631 (internal quotation marks and citation omitted).

              At sentencing, the Government need only establish the

amount of drugs involved in an offense by a preponderance of the

evidence.      United States v. Brooks, 524 F.3d 549, 560 n.20, 562

(4th Cir. 2008); United States v. Cook, 76 F.3d 596, 604 (4th

Cir. 1996).        “[W]here there is no drug seizure or the amount of

drugs seized does not reflect the scale of the offense, the

court    shall        approximate       the       quantity    of       the    controlled

substance.”         United States v. D’Anjou, 16 F.3d 604, 614 (4th

                                              5
Cir.     1994).        In    addition,          a    district        court      may       consider

acquitted conduct in applying the Guidelines when that conduct

has    been     proven      by    a    preponderance         of      the     evidence.           See

Watts v.      United     States,        519    U.S.     148,     156    (1997).           We    will

afford     the     district           court     “broad       discretion            as    to    what

information to credit in making its calculations.”                                       Cook, 76

F.3d at 604 (internal quotations and citation omitted).

              Moreover, under the Guidelines, a district court shall

apply a two-level enhancement in offense level if a dangerous

weapon    was     possessed.          See     U.S.     Sentencing       Guidelines            Manual

(“USSG”) § 2D1.1(b).                  The commentary to that section provides

that    the    enhancement            should    be     “applied        if    the    weapon      was

present, unless it is clearly improbable that the weapon was

connected       with   the       offense.”           USSG    §    2D1.1(b)      cmt.       n.3(A).

After     reviewing         the       record     and     carefully           considering        the

relevant legal authorities, we conclude that the district court

did not err in calculating the advisory Guidelines range.

              Accordingly, we affirm the judgment of the district

court.        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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