                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4945



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


CARLOS TOLSON ANDREWS, a/k/a Crip Los,

                                               Defendant - Appellant.


                               No. 06-5038



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DAMAR TYREECE PETERSON, a/k/a Fish Lips,

                                               Defendant - Appellant.


Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:06-cr-00017-LMB; 1:06-cr-00017-LMB-3)


Submitted:   August 31, 2007             Decided:   September 26, 2007


Before WILKINSON and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Richard E. Gardiner, Fairfax, Virginia, for Appellants.      Chuck
Rosenberg, United States Attorney, Patrick F. Stokes, G. Derek
Andreson, Assistant United States Attorneys, Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               In these consolidated cases, a jury convicted Carlos

Tolson Andrews of conspiracy to distribute fifty or more grams of

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

(b)(1)(A)(iii) (2000), distributing cocaine base on or about June

15, 2005, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2000)

and 18 U.S.C. § 2 (2000), and distributing cocaine base on or about

September      1,   2005,   in    violation    of    21    U.S.C.       §§   841(a)(1),

(b)(1)(C) (2000).        The same jury convicted Damar Tyreece Peterson

of conspiracy to distribute five grams or less of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2000), and

distributing cocaine base on or about September 21, 2005, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2000) and 18 U.S.C.

§   2   (2000).       The   court    sentenced       Andrews       to     151   months’

imprisonment and Peterson to 63 months’ imprisonment.                        We affirm.

               With respect to Andrews’ appeal, No. 06-4945, Andrews

first argues that the General Verdict form improperly instructed

the jury.      Andrews contends that the failure to properly instruct

the jury was in violation of Pinkerton v. United States, 328 U.S.

640, 647-48 (1946), and United States v. Collins, 415 F.3d 304, 314

(4th    Cir.    2005).      The   Government    concedes       the       verdict   form

“arguably provided an inadequate description of the law.” However,

the Government contends that the court’s instructions as a whole

were adequate.       The Government describes that after the jury asked


                                      - 3 -
a question regarding the drug quantities, the court discussed with

the    parties   a   proposed   answer.      The   Defendants      asked     for   a

modification to the answer.          The court then gave the following

instruction:

       If you have found a defendant guilty of being a member of
       the conspiracy, then you have to determine . . . whether
       the government has proven beyond a reasonable doubt the
       quantity of drugs for which that defendant was involved
       in the conspiracy or the quantity of drugs which it was
       reasonably foreseeable to that individual defendant the
       others would be distributing as part of the conspiracy.
       All right? The law provides for a concept of reasonable
       foreseeability.    The burden is, of course, on the
       government to prove what is reasonably foreseeable to an
       individual defendant, all right?

             This court reviews de novo the question of whether a

district court has properly instructed a jury.                United States v.

Scott, 424 F.3d 431, 434 (4th Cir. 2005).                 Moreover, this court

“will not vacate a conviction on the basis of an erroneous jury

charge if viewed as a whole and in the context of the trial, the

charge was not misleading and contained an adequate statement of

the law.”     Id. (Internal quotation marks omitted).              We find that

taken as a whole, the court complied with the rule in Collins and

properly instructed the jury.

             Next, Andrews argues that the DEA chemist improperly

tested the substance containing cocaine base. Andrews asserts that

the    DEA   chemist’s   methodology      could    have     resulted    in   loose

particles, unrelated to the carrier medium, being included in the

test   and   unfairly    increased   the     net   weight    of   the   substance


                                     - 4 -
attributed to Andrews.     Under Chapman v. United States, 500 U.S.

453, 456 (1991), which Andrews concedes is the controlling law,

the weight of a drug includes the net weight of the drug plus any

dilutant, cutting agent or carrier medium.           We find Andrews’

argument is pure speculation as there was no evidence presented

that the DEA chemist improperly tested the drugs or included

unrelated    material.   The issue accordingly provides no basis for

relief.

            Andrews also argues that the evidence is insufficient to

support the court’s finding that the quantity of cocaine base

attributable to Andrews is 50 to 150 grams.         When reviewing the

district court’s application of the sentencing guidelines, this

court reviews findings of fact for clear error.        United States v.

Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309

(2006).      In   calculating   the   guideline   range   for   each   co-

conspirator, “all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity,

that occurred during the commission of the offense of conviction,

in preparation for that offense, or in the course of attempting to

avoid detection or responsibility for that offense” are to be

included.     U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(B)

(2005).   After thoroughly reviewing the record, we find the court

did not clearly err by finding over 50 grams of cocaine base

attributable to Andrews.


                                  - 5 -
          Finally, Andrews asserts that he should have received a

two level reduction at sentencing for being a minor participant.

The standard of review for factual determinations, such as whether

the appellant’s conduct warrants a minor role sentencing reduction,

is clear error.    United States v. Daughtrey, 874 F.2d 213, 218 (4th

Cir. 1989).    A defendant who is only a “minor participant” in a

criminal activity may have his offense level reduced by two levels.

USSG § 3B1.2(b).      This applies to a defendant “who is less culpable

than most other participants, but whose role could not be described

as minimal.” USSG § 3B1.2(b), comment. (n.5). After reviewing the

record,   we   find     that     Andrews   was   extensively   involved    in

distributing cocaine base and conclude the court did not clearly

err by declining to apply a downward adjustment for having a minor

role.

          With regard to Peterson’s appeal, No. 06-5038, Peterson

first argues that there was insufficient evidence to warrant his

conviction of conspiracy to distribute 50 grams or more of cocaine

base and distribution of cocaine base on September 21, 2005.              This

court reviews the district court’s decision to deny a Fed. R. Crim.

P. 29 motion de novo.          United States v. Smith, 451 F.3d 209, 216

(4th Cir.), cert. denied, 127 S. Ct. 197 (2006).          A jury’s verdict

must be upheld on appeal if there is substantial evidence in the

record to support it.          Glasser v. United States, 315 U.S. 60, 80

(1942).   “[A]n appellate court’s reversal of a conviction on


                                     - 6 -
grounds of insufficient evidence should be confined to cases where

the prosecution’s failure is clear.”               United States v. Jones, 735

F.2d   785,    791    (4th   Cir.   1984)   (internal         quotation       marks   and

citation omitted).           In determining whether the evidence in the

record is substantial, this court views the evidence in the light

most favorable to the government, and inquires whether there 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.          United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc).                   A defendant challenging the

sufficiency of the evidence faces a heavy burden. United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                    In evaluating the

sufficiency     of    the    evidence,    this    court   does     not    review      the

credibility of the witnesses and assumes that the jury resolved all

contradictions in the testimony in favor of the government. United

States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).

              “To    prove   a   conspiracy      under   21    U.S.C.     §    846,   the

government must prove (1) an agreement between two or more persons

to engage in conduct that violates a federal drug law, (2) the

defendant’s knowledge of the conspiracy, and (3) the defendant’s

knowing and voluntary participation in the conspiracy.”                          United

States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001); Burgos,

94 F.3d at 857.       A defendant may be convicted of conspiracy without

knowing all the conspiracy’s details, as long as he joins the


                                         - 7 -
conspiracy understanding its unlawful nature and willfully joins in

the plan on at least one occasion.          Burgos, 94 F.3d at 858.    “The

existence of a tacit or mutual understanding between conspirators

is sufficient evidence of a conspiratorial agreement.”               United

States v. Cardwell, 433 F.3d 378, 390 (4th Cir. 2005) (internal

quotation marks and citation omitted), cert. denied, 126 S. Ct.

1669 (2006); see Burgos, 94 F.3d at 857 (“By its very nature, a

conspiracy is clandestine and covert, thereby frequently resulting

in little direct evidence of such an agreement.”).                Here, the

record   contains   the   testimony   of    several   witnesses   regarding

Peterson’s     participation   in     a     crack   cocaine   distribution

conspiracy. We find there is substantial evidence in the record to

support the conviction.

           Next, Peterson argues the evidence was insufficient to

convict him of distributing crack cocaine on September 21, 2005.

The jury posed a question regarding this count, which prompted the

judge to give an aiding and abetting instruction.         We find there is

substantial evidence in the record to support the conviction under

this theory.

           Finally, Peterson contends that the district court erred

by considering acquitted conduct in determining his offense level

under the Sentencing Guidelines.            A district court is free to

consider acquitted conduct proved at sentencing by a preponderance

of the evidence, even after United States v. Booker, 543 U.S. 220


                                    - 8 -
(2005).   See United States v. Duncan, 400 F.3d 1297, 1304-05 (11th

Cir.), cert. denied, 126 S. Ct. 432 (2005); United States v.

Williams, 399 F.3d 450, 453-54 (2d Cir. 2005).   We find the issue

is without merit.

            Accordingly, the judgments of the district court are

affirmed.    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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