                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-4258


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

OSCAR HERNANDEZ,

                 Defendant - Appellant.



                            No. 10-4276


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

JAIME PUENTE-VAZQUEZ,

                 Defendant - Appellant.




Appeals from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees,    District    Judge.       (5:08-cr-00027-RLV-DCK-4;
5:08-cr-00027-RLV-DCK-7)


Submitted:   July 8, 2011                  Decided:   July 22, 2011


Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Matthew Collin Joseph, Charlotte, North Carolina; Kenneth D.
Snow, COBLE & SNOW, LLP, Charlotte, North Carolina, for
Appellants. Anne M. Tompkins, United States Attorney, Richard
Lee Edwards, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Oscar Hernandez was convicted by a jury of conspiracy

to possess with intent to distribute cocaine, in violation of 21

U.S.C.    §§     841(a)(1),       846    (2006),        attempted    possession         with

intent    to     distribute       cocaine,        21    U.S.C.     §§ 841(a)(1),        846,

possessing a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c) (2006), and possession of a

firearm    by     an     illegal     alien,        in    violation     of     18     U.S.C.

§ 922(g)(5).           The    district     court       sentenced    Hernandez      to    228

months in prison.              Jaime Puente-Vazquez was convicted by the

same jury        of conspiracy to possess with intent to distribute

cocaine,    in     violation       of    21   U.S.C.       §§ 841(a)(1),       846,      and

possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a).         The district court sentenced Puente-Vazquez to

151   months     in     prison.         Hernandez       and   Puente-Vazquez         timely

appeal.    We affirm.

            Both        Hernandez       and       Puente-Vazquez       challenge         the

sufficiency of the evidence on each count on which they were

convicted.             Additionally,          Puente-Vazquez         challenges          his

sentence, claiming that the district court improperly applied an

enhancement       for        obstruction      of       justice     pursuant     to      U.S.

Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2009).

            This court reviews a district court’s decision to deny

a Fed. R. Crim. P. 29 motion for a judgment of acquittal de

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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

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).

            Because this case involved a conspiracy charge under

21 U.S.C. § 846, the Government was required to prove: (1) an

agreement between two or more persons to engage in conduct that

violated 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,

                                         4
245 F.3d 368, 384-85 (4th Cir. 2001).                     Since a conspiracy is by

its nature clandestine and covert, it is generally proved by

circumstantial evidence.                 United States v. Burgos, 94 F.3d 849,

857 (4th Cir. 1996) (en banc).                     Evidence tending to prove a

conspiracy       may     include     a    defendant’s     relationship       with    other

members     of       the     conspiracy;      moreover,       the    existence       of    a

conspiracy may be inferred from a development and collocation of

circumstances.           Id. at 858.        “Circumstantial evidence sufficient

to   support        a    conspiracy       conviction      need    not     exclude    every

reasonable hypothesis of innocence, provided the summation of

the evidence permits a conclusion of guilt beyond a reasonable

doubt.”     Id. (citation omitted).

               It       is    unnecessary      that     the      conspiracy        have    a

“discrete,          identifiable         organizational       structure.”           United

States    v.     Banks,       10   F.3d    1044,   1054    (4th     Cir.    1993).        An

important      consideration         is    “whether     the   actor     demonstrated       a

substantial level of commitment to the conspiracy, for example

by engaging in a consistent series of smaller transactions that

furthered its ultimate object of supplying the consumer demand

of the market.”              Id. (citation and internal quotation marks and

brackets       omitted).           Our    review   of   the      record    leads    us    to

conclude that the district court did not err in finding there

was sufficient evidence for the jury to convict both Hernandez

and Puente-Vazquez on this count.

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             Next,           Puente-Vazquez                contends           that         there        was

insufficient evidence to convict him of possession with intent

to distribute at least five kilograms of cocaine.                                               To prove

possession with the intent to distribute cocaine, the Government

is     required        to     prove        that        a     defendant:             (1)     knowingly;

(2) possessed cocaine; (3) with the intent to distribute it.

United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005).

Possession       may    be    actual       or     constructive.                  United     States       v.

Rusher, 966 F.2d 868, 878 (4th Cir. 1992).                                  Intent to distribute

may be proved by a number of factors, including the amount of

cash    seized,        the    possession          of       drug      paraphernalia,              and    the

seizure     of     a        quantity       of     drugs          too        large     for        personal

consumption.       United States v. Fisher, 912 F.2d 728, 730-31 (4th

Cir.    1990).         After        our    thorough             review      of     the     record,       we

conclude that the district court did not err in denying Puente-

Vazquez’s     motion          for     a    judgment             of     acquittal          as     to     the

possession with intent to distribute charge.

             Hernandez claims that the evidence was insufficient to

sustain his conviction for attempted possession with intent to

distribute       cocaine.            To    sustain          a    conviction          for        attempted

possession with intent to distribute, there must be sufficient

evidence     demonstrating:               (1)     “culpable            intent;”           and    (2)     “a

substantial       step       toward       the   commission             of    the     crime       that    is

strongly     corroborative            of     that          intent.”           United        States       v.

                                                  6
Sutton, 961 F.2d 476, 478 (4th Cir. 1992) (internal quotation

marks     omitted).         “[A]    substantial          step       is     more    than     mere

preparation, yet may be less than the last act necessary before

the actual commission of the substantive crime.”                             Id. (internal

quotation marks omitted).                 This Court has held that “[w]hether

conduct       represents       a      substantial         step           depends     on      the

‘surrounding        factual        circumstances’             and,       therefore,         such

determinations are necessarily fact specific.”                             United States v.

Neal, 78 F.3d 901, 906 (4th Cir. 1996).                             Again, our review of

the record leads us to conclude that the district court did not

err in denying Hernandez’s motion for a judgment of acquittal on

this count.

              Hernandez      next     challenges         the        sufficiency       of     the

evidence      on   both   of    the    firearms      charges          against       him.      To

convict    Hernandez      of    violating        § 924(c),           the    Government       was

required      to    prove      that       Hernandez:          (1)     committed       a     drug

trafficking crime; and (2) possessed a firearm in furtherance of

that crime.         18 U.S.C. § 924(c)(1)(A) (2006).                       Because we find

that    the    evidence      was      sufficient         to    convict        Hernandez      of

conspiracy     to    possess       with    intent    to       distribute          cocaine    and

attempted      possession      with       intent    to    distribute          cocaine,       the

first element is satisfied.                Moreover, our review of the record

reveals that the district court was correct in concluding there

was sufficient evidence to satisfy the second element.

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              It is unlawful for any person who is an illegal alien

to     “possess      in     or     affecting            commerce,       any     firearm       or

ammunition.”           18     U.S.C.      § 922(g)(5).                 Because        Hernandez

stipulated that he was an illegal alien and that the pistol

found    under       the    mattress      at       his     house       had     travelled      in

interstate       commerce,        the    only       contested          issue     is     whether

Hernandez      possessed         the    firearm.            The    Government          was   not

required      to     show    that       Hernandez         physically         possessed       the

weapons.      See United States v. Blue, 957 F.2d 106, 107 (4th Cir.

1992) (noting that, in a § 922(g) conviction, the government

need    not   produce       evidence      of       actual    possession,          as    it   may

proceed on a constructive possession theory demonstrating that

the defendant showed ownership, dominion, or control over the

firearm itself).            After reviewing the record, we conclude that

the     evidence      was     sufficient           to     establish       that        Hernandez

possessed     the     firearm.           Accordingly,         we       conclude       that   the

district court did not err in denying Hernandez’s motion for a

judgment of acquittal on either of the firearms counts.

              Lastly, Puente-Vazquez challenges the district court’s

application of the obstruction of justice enhancement pursuant

to USSG § 3C1.1.             A defendant’s base offense level is to be

increased      two     levels      for     obstruction            of    justice        if    “the

defendant     willfully          obstructed        or    impeded,       or     attempted      to

obstruct or impede, the administration of justice with respect

                                               8
to the investigation, prosecution, or sentencing of the instant

offense of conviction, and . . . the obstructive conduct related

to (i) the defendant’s offense of conviction.”                   USSG § 3C1.1.

The     commission     of   perjury     by     a   defendant     supports    the

enhancement.     USSG § 3C1.1 cmt. n.4(b).               The Supreme Court has

defined perjury for purposes of § 3C1.1 in the following manner:

“[a] witness testifying under oath or affirmation” and giving

“false testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result of

confusion,     mistake,     or     faulty     memory.”       United    States v.

Dunnigan, 507 U.S. 87, 94 (1993).             We conclude that the district

court did not err in applying this enhancement.

             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 in the decisional

process.



                                                                        AFFIRMED




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