                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4777


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEMORIUS LAMAR ANDERSON,

                Defendant - Appellant.



                            No. 13-4916


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GARY MOUNTCASTLE, a/k/a Gary Montcastle, a/k/a Gary Riddick,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.    Robert J. Conrad,
Jr., District Judge.  (3:11-cr-00003-RJC-DSC-17; 3:11-cr-00003-
RJC-DSC-13)


Submitted:   December 22, 2014            Decided:   January 16, 2015


Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Scott H. Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North
Carolina; D. Baker McIntyre, III, Charlotte, North Carolina, for
Appellants.   Anne M. Tompkins, United States Attorney, Amy E.
Ray,   Assistant  United   States  Attorney,   Asheville,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            In    these      consolidated         appeals,       we      consider        several

assignments of error.             Gary Mountcastle was tried by a jury and

convicted of conspiracy to distribute and to possess with intent

to distribute less than 500 grams of cocaine, in violation of 21

U.S.C. § 846 (2012).             The jury convicted Demorius Lamar Anderson

of    conspiracy      to    distribute       and       to   possess        with    intent    to

distribute       marijuana,        in    violation          of      21      U.S.C.        § 846;

conspiracy       to    commit     and    attempted          Hobbs      Act       robbery,    in

violation of 18 U.S.C. § 1951(a) (2012); and a firearm offense,

in violation of 18 U.S.C. § 924(c) (2012).                               Following trial,

Mountcastle      was       sentenced    to    ninety        months         in    prison,    and

Anderson was sentenced to 451 months in prison.

            On     appeal,       Anderson        alleges     that        the     trial     court

improperly        responded        to    a         jury      question            during      its

deliberations.             Mountcastle    challenges          the        district     court’s

denial of his motions for acquittal pursuant to Fed. R. Crim. P.

29.     Mountcastle also contests the district court’s findings at

sentencing that he was responsible for more than 500 grams of

cocaine    and    that     his    sentence       was    subject       to    an    enhancement

based on obstruction of justice.                   We address these arguments in

turn.     For the reasons that follow, we affirm the appellants’

convictions and sentences.



                                             3
               We    review       a    district         court’s     response      to     a    jury’s

question for an abuse of discretion.                             United States v. Burgess,

684 F.3d 445, 453 (4th Cir. 2012).                         “[T]he trial court must take

care, in responding to a jury question, not to encroach upon its

fact-finding power.”               United States v. Cooper, 482 F.3d 658, 664

(4th    Cir.    2007).            “In       responding       to    a    jury’s        request    for

clarification on a charge, the district court’s duty is simply

to respond to the jury’s apparent source of confusion fairly and

accurately          without       creating          prejudice.”              United    States     v.

Foster,       507    F.3d       233,    244        (4th    Cir.    2007)       (alteration       and

internal quotation marks omitted).                          “An error requires reversal

only if it is prejudicial in the context of the record as a

whole.”        Id.         Here,       we    conclude       that       the    district       court’s

response did not encroach on the province of the jury, nor was

the court’s response prejudicial to Anderson in the context of

the record as a whole.

               We review de novo the denial of a Rule 29 motion for a

judgment of acquittal.                  United States v. Jaensch, 665 F.3d 83,

93 (4th Cir. 2011).               A defendant challenging the sufficiency of

the evidence faces “a heavy burden.”                             United States v. McLean,

715    F.3d    129,       137    (4th       Cir.    2013)    (internal         quotation       marks

omitted).           The    jury       verdict       must    be    sustained      if     “there    is

substantial evidence in the record, when viewed in the light

most favorable to the government, to support the conviction.”

                                                    4
Jaensch,    665    F.3d    at     93    (internal         quotation     marks    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.    (alteration         and        internal       quotation        marks      omitted).

Furthermore,       “the    jury,       not    the    reviewing     court,       weighs   the

credibility of the evidence and resolves any conflicts in the

evidence    presented.”               McLean,       715    F.3d    at    137     (internal

quotation marks omitted).                “Reversal for insufficient evidence

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).

            To convict Mountcastle of conspiracy to distribute and

to possess with intent to distribute cocaine, the Government had

to prove the following essential elements: “(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. Green, 599

F.3d 360, 367 (4th Cir. 2010).                     Having reviewed the record, we

conclude that Mountcastle’s conspiracy conviction was supported

by sufficient evidence.

            Mountcastle          next    challenges        the    calculation      of    his

sentence.      First, Mountcastle contends that the district court

                                               5
erred         in    calculating       the   relevant       drug      quantity,    maintaining

that the court was constrained for sentencing purposes by the

jury’s finding that he was responsible for less than 500 grams

of       cocaine.           This      Court     has      squarely      held    that    “beyond

establishing           the       maximum      sentence,        the   jury’s    drug-quantity

determination              place[s]    no     constraint       on    the    district   court’s

authority to find facts relevant to sentencing.”                               United States

v.       Young,      609    F.3d    348,      357   (4th    Cir.      2010).      Mountcastle

acknowledges that his claim is foreclosed by circuit precedent

and notes that he seeks to preserve the issue for possible en

banc or Supreme Court review.                           Bound by Young, we discern no

error with the district court’s drug quantity calculation.

                   Finally, Mountcastle challenges the district court’s

application           of     a    sentencing        enhancement       for     obstruction   of

justice.            The Guidelines provide for a two-level enhancement

when “the defendant willfully obstructed or impeded . . . the

administration of justice with respect to the . . . prosecution

.    .    .    of    the    instant     offense.”          U.S.      Sentencing    Guidelines

Manual         § 3C1.1      (2012).         Examples      of    covered     conduct    include

committing perjury.                Id. cmt. n.4(B).

                   The adjustment for perjury is not applicable merely

because the defendant testified and subsequently was convicted.

See United States v. Dunnigan, 507 U.S. 87, 95 (1993).                                 Rather,

the sentencing court must find that the defendant gave false

                                                    6
testimony    under    oath   “concerning        a   material     matter    with     the

willful   intent     to   provide   false   testimony,         rather     than    as   a

result of confusion, mistake, or faulty memory.”                   Id. at 94; see

United States v. Smith, 62 F.3d 641, 646-48 (4th Cir. 1995).

            “In    assessing    whether     a       sentencing    court     properly

applied the Guidelines, we review the court’s factual findings

for clear error and its legal conclusions de novo.”                              United

States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).                      Here, the

district court found that Mountcastle’s testimony was untruthful

when he asserted that he was merely a drug user and not a drug

dealer.     The district court found each element of perjury and,

therefore, we conclude that the enhancement was not erroneous.

            Finding the alleged errors to lack merit, we affirm

the judgments 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




                                       7
