                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-5031


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RAPHEL SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:09-cr-00054-H-3)


Submitted:   August 30, 2012             Decided:     September 12, 2012


Before WYNN and    FLOYD,   Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Kristine L. Fritz,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Raphel Smith was convicted following a jury trial of

conspiracy to distribute and possess with intent to distribute

fifty or more grams of cocaine base (Count One), in violation of

21 U.S.C. § 846 (2006); distribution of more than five grams of

cocaine base and a quantity of marijuana and aiding and abetting

the same (Count Six), and distribution of a quantity of cocaine

base and aiding and abetting the same (Count Fourteen), both in

violation of 21 U.S.C. §§ 841(a)(1) and 2 (2006); and possession

of a firearm in furtherance of a drug trafficking crime (Count

Fifteen), in violation of 18 U.S.C. § 924(c)(1)(A) (2006).                    The

district    court   sentenced    Smith     to    concurrent    terms     of   235

months’    imprisonment   on    Counts    One,   Six,   and   Fourteen    and   a

consecutive sentence of 60 months on Count Fifteen.                On appeal,

Smith challenges the sufficiency of the evidence, an evidentiary

ruling, and the reasonableness of his sentence.                 We affirm in

part, vacate in part, and remand for resentencing.

            Smith first argues that the district court erred in

denying his Fed. R. Crim. P. 29 motion for judgment of acquittal

as to all four counts.         We review de novo the district court’s

denial of a Rule 29 motion.         United States v. Penniegraft, 641

F.3d 566, 571 (4th Cir.), cert. denied, 132 S. Ct. 564 (2011).

Where the motion alleges insufficiency of the evidence, we must

affirm if, viewing the evidence in the light most favorable to

                                      2
the Government, “any rational trier of fact could have found the

essential    elements        of    the     crime     beyond      a    reasonable    doubt.”

United    States      v.    Green,     599      F.3d      360,   367    (4th     Cir.    2010)

(internal        quotation         marks        omitted).              In   making           this

determination, we review the record “to determine whether the

conviction       is        supported       by       substantial         evidence,        where

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.”

United States v. Hickman, 626 F.3d 756, 763 (4th Cir. 2010)

(internal quotation marks omitted), cert. denied, 132 S. Ct. 469

(2011).      We will not make credibility determinations, instead

assuming    that      the    jury    resolved        conflicting        evidence        in    the

Government’s favor.               Penniegraft, 641 F.3d at 572.                     Thus, a

defendant challenging the sufficiency of the evidence bears “a

heavy burden,” as “[r]eversal . . . is reserved for the rare

case     where    the       prosecution’s           failure      is    clear.”          United

States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal

quotation marks omitted).

            Contrary to Smith’s assertion, we conclude that the

record contains abundant evidence of his involvement in the drug

conspiracy       charged      in     Count      One,      particularly         through        the

testimony of his co-conspirators and the undercover officer who

interacted with the conspiracy firsthand.                        See Hickman, 626 F.3d

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at 763 (elements of conspiracy).                  With regard to Counts Six and

Fourteen, viewing the evidence in the light most favorable to

the Government, we conclude that the record contains substantial

evidence to support Smith’s knowing and intentional assistance

in    facilitating     the    controlled       purchases     on    those    occasions.

See United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005)

(discussing elements of distribution of controlled substances);

United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en

banc) (describing aiding and abetting in conspiracy context).

             As to Count Fifteen, Smith’s primary contention — that

the   only   evidence    adduced      to   support     his    conviction      was   his

presence at the time the weapon and drugs were sold — misses the

mark, as it fails to account for Smith’s co-ownership of the gun

and the gun’s benefits to the February 21 drug sale.                           Viewing

the evidence in the light most favorable to the Government, we

conclude     Smith’s     conviction          is     supported       by     substantial

evidence.       See United States v. Jeffers, 570 F.3d 557, 565 (4th

Cir. 2009) (elements of § 924(c)(1)(A) offense); United States

v.    Wilson,    484   F.3d    267,    282      (4th   Cir.       2007)    (concluding

constructive possession of firearm is sufficient to establish

guilt); United States v. Lomax, 293 F.3d 701, 705 (4th Cir.

2002) (discussing “in furtherance of” requirement).

             Next, relying on Fed. R. Evid. 404(b), Smith argues

that the court erred by admitting evidence of a prior robbery.

                                           4
Because he did not object on Rule 404(b) grounds in the district

court, we review the admission of this evidence only for plain

error.     See United States v. Olano, 507 U.S. 725, 732 (1993).

Our review of the record leads us to conclude that there was no

error — plain or otherwise — in the admission of the evidence of

the prior robbery.         See United States v. Queen, 132 F.3d 991,

995-97 (4th Cir. 1997) (providing standard).

            Finally,       Smith     challenges        his    sentence        on   both

procedural and substantive grounds.                   We review a sentence for

reasonableness,       applying       a     deferential        abuse-of-discretion

standard.        Gall v. United States, 552 U.S. 38, 51 (2007).                      We

must     first    ensure    that     the       district      court    committed      no

significant procedural error, such as improper calculation of

the    Guidelines     range,     insufficient         consideration      of    the   18

U.S.C.    § 3553(a)    (2006)      factors      and    the   parties’     sentencing

arguments, and inadequate explanation of the sentence imposed.

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                          Only

if the sentence is free of significant procedural error will we

review the substantive reasonableness of the sentence.                    See id.

            Smith     argues     that     the    district     court     should     have

attributed to him a lower drug weight, equivalent to 1650.685

grams of powder cocaine.            We review for clear error a district

court’s    calculation      of     drug    quantity       under   the    Guidelines.

United States v. Slade, 631 F.3d 185, 188 (4th Cir.), cert.

                                           5
denied, 131 S. Ct. 2943 (2011); United States v. Harvey, 532

F.3d 326, 336-37 (4th Cir. 2008) (defining clear error).                                  The

Government must prove drug quantity by a preponderance of the

evidence.        United States v. Milam, 443 F.3d 382, 386 (4th Cir.

2006).     However, “[i]f the district court relies on information

in   the    presentence        report   .     .    .        in   making    findings,      the

defendant bears the burden of establishing that the information

relied     on    by   the    district   court          in    making   its      findings    is

incorrect . . . .”           United States v. Randall, 171 F.3d 195, 210-

11 (4th Cir. 1999).

                Smith provides no rationale explaining why the powder

cocaine properly attributed to him as relevant conduct by the

district court should not have been converted into crack, and we

conclude that Smith has failed to demonstrate that the district

court clearly erred in this regard.                         See id.; United States v.

Ricco, 52 F.3d 58, 63 (4th Cir. 1995) (approving 100:88 powder-

to-crack conversion ratio).              Assuming, as Smith asserts, that

certain transactions should not have been attributed to him,

they have no impact on his Guidelines range.                          Because the drug

weight     is    amply      supported   by       the    testimony         of   Smith’s    co-




                                             6
defendants, the district court did not clearly err in finding

Smith responsible for 1598.6 grams of crack cocaine. 1

            Turning to Smith’s challenge to the district court’s

imposition of a sentencing enhancement for being a manager or

supervisor, see USSG § 3B1.1(b), we review the district court’s

factual finding supporting the role enhancement for clear error.

United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).

Smith argues that the evidence did not support the conclusion

that he exercised control over any of the participants in the

conspiracy.       We   agree.         Without    considering        the   pertinent

factors,    the   district    court    made     only   a   single    finding   with

regard to control: “When [Smith] told somebody . . . that he

didn’t give a ‘S’ what he sold the gun for, that was management

control.”     (J.A. 661). 2     Given the context of the statement on

which the court relied, as well as Smith’s ownership interest in

the firearm at issue, we conclude that the statement did not

     1
       To the extent Smith argues that the district court should
have established a lower base offense level based on his policy
disagreement with the crack-to-powder sentencing disparity, the
court could not consider that disagreement in calculating the
applicable Guidelines range.     See U.S. Sentencing Guidelines
Manual § 1B1.1 (2010). Nor could the court apply the two-level
adjustment advocated by Smith because the adjustment had been
removed from the commentary to the Guidelines.    We express no
view, however, on the propriety of the district court’s
consideration of these arguments in denying Smith’s request for
a variance from the Guidelines range.
     2
         “J.A.” refers to the joint appendix filed by the parties.



                                         7
constitute        evidence        of     Smith’s      managerial         or     supervisory

authority.        See     Kellam,      568    F.3d    at    148    (discussing         factors

courts   consider         in     applying      § 3B1.1(b)         enhancement).          Even

considering the additional evidence available in the record, we

conclude     that,       while     the       record    may     have      demonstrated       a

hierarchical structure in the conspiracy, it failed to provide

evidence     of    Smith’s       exercise      of    authority      over      another    that

would support the role enhancement.                        Because the imposition of

the   role     enhancement         was       clearly       erroneous       on    the     facts

presented,        we      vacate       Smith’s        sentence       and        remand    for

resentencing.          See Harvey, 532 F.3d at 336-37.

             Because        we      find       Smith’s       sentence           procedurally

unreasonable,       we    need     not     reach     his    arguments      regarding       the

court’s denial of a variance or the substantive reasonableness

of his sentence.               Accordingly, we affirm Smith’s convictions,

vacate his sentence, and remand for resentencing consistent with

this opinion.          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 IN PART,
                                                                       VACATED IN PART,
                                                                           AND REMANDED




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