                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4254


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL FREDDIE DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:07-cr-00320-WO-1)


Submitted:   November 30, 2010            Decided:   December 28, 2010


Before WILKINSON, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James B. Craven, III, Durham, North Carolina, for Appellant.
Angela   Hewlett  Miller,   Assistant  United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Michael F. Davis was convicted after a jury trial of

distribution of 4.9 grams of cocaine base, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(c) (2006).                     Davis was sentenced as a

career offender to 225 months’ imprisonment.                         Davis’s counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),          asserting    that    there   are    no    meritorious      issues   for

appeal,      but     questioning       whether      the   district    court     violated

Davis’s Sixth Amendment right to confront the witnesses against

him    by    admitting        the    out-of-court     statements      of    a   deceased

confidential informant, and whether the district court erred in

denying Davis’s motions for judgment of acquittal.                         Davis filed

a pro se supplemental brief rearguing the issues pointed out by

counsel, and filed a supplement to his pro se brief, 1 arguing

that       his    indictment     should     have    been    dismissed      because   the

Government violated Fed. R. Crim. P. 6(d), and the Interstate

Agreement on Detainers Act, 18 U.S.C. app. 2 (2006).                       We affirm.

                  Generally, we review decisions to admit evidence for

abuse of discretion.                United States v. Forrest, 429 F.3d 73, 79

(4th Cir. 2005).             However, where evidentiary issues relate to an

asserted          violation    of     the   Sixth    Amendment,      the   appropriate

       1
       Davis’s brief is entitled a “Motion for Limited Remand on
Rule 6(d) and Detainer Act Violation Claims,” which we construe
as a supplement to his original pro se brief.



                                              2
standard of review is de novo.                   United States v. Robinson, 389

F.3d 582, 592 (6th Cir. 2004).                   The Confrontation Clause of the

Sixth Amendment bars “admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to

testify,   and   the       defendant     had      had       a   prior   opportunity   for

cross-examination.”          Crawford v. Washington, 541 U.S. 36, 53-54

(2004).      For       a    statement        to        be       excludable    under   the

Confrontation Clause, it must be “testimonial,” United States v.

Udeozor, 515 F.3d 260, 268 (4th Cir. 2008), and offered for the

truth of the matter asserted, Crawford, 541 U.S. at 59 n.9 (the

Confrontation    Clause       does     not       bar    the       use   of   “testimonial

statements for purposes other than establishing the truth of the

matter asserted”).

           Assuming        that   the    statements              were   testimonial   and

offered for the truth of the matters asserted, their improper

admission does not require reversal.                        Although Davis initially

objected to the admission of the statements, he retracted both

objections in light of the limiting instructions subsequently

provided by the district court.                  Because Davis acquiesced to the

district court’s proposed solution, his claims now merit at most

only plain error review.                See Fed. R. Evid. 103 committee’s

note.

           To demonstrate plain error, Davis must show that:                          (1)

there was an error; (2) the error was plain; and (3) the error

                                             3
affected his substantial rights.                   United States v. Olano, 507

U.S. 725, 732 (1993).              Moreover, we reverse only if “the error

seriously       affect[ed]          the    fairness,           integrity     or       public

reputation of judicial proceedings.”                      Id. (internal quotation

omitted).       We have reviewed the record and conclude that Davis

cannot meet this demanding standard.

               We review de novo a district court’s denial of a Fed.

R. Crim. P. 29 motion for judgment of acquittal.                           United States

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

challenging      the    sufficiency        of     the    evidence       “bears    a    heavy

burden.”       United States v. Beidler, 110 F.3d 1064, 1067 (4th

Cir. 1997) (internal quotation marks omitted).                           A jury verdict

must be sustained “if, viewing the evidence in the light most

favorable      to     the   prosecution,         the    verdict     is     supported     by

‘substantial evidence.’”              United States v. Smith, 451 F.3d 209,

216 (4th Cir. 2006).               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 omitted).

“[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

omitted).       “Reversal for insufficient evidence is reserved for



                                             4
the rare case where the prosecution’s failure is clear.”                               Id.

(internal quotation marks omitted).

             To       prove   that    Davis       distributed    cocaine       base,   the

Government        had    to    show     that       Davis:       (1)     “knowingly      or

intentionally distributed a controlled substance stated in the

indictment; and (2) at the time of such distribution knew that

the substance distributed was a controlled substance under the

law.”      United States v. Alerre, 430 F.3d 681, 689 (4th Cir.

2005).     To distribute a controlled substance means to deliver

it;     delivery,       in    turn,    is     “the     actual,     constructive,        or

attempted transfer of a controlled substance.”                         United States v.

Washington, 41 F.3d 917, 919 (4th Cir. 1994) (internal quotation

marks and citation omitted).                   After reviewing the record, we

conclude that there was sufficient evidence from which the jury

could conclude that Davis was guilty beyond a reasonable doubt

of distributing cocaine base.

             We also conclude that Davis’s sentence is reasonable.

We review a sentence for abuse of discretion.                           Gall v. United

States, 552 U.S. 38, 51 (2007).                    The first step in this review

requires    us     to    ensure      that   the     district    court     committed     no

significant procedural error.                 United States v. Evans, 526 F.3d

155, 161 (4th Cir. 2008).              Significant procedural errors include

“‘failing        to     calculate       (or       improperly      calculating)         the

Guidelines        range’”     or     “‘failing       to     consider     the   § 3553(a)

                                              5
factors.’”     United States v. Carter, 564 F.3d 325, 329 (4th Cir.

2009) (quoting Gall, 552 U.S. at 51.).           We then consider the

substantive reasonableness of the sentence, taking into account

the   totality   of    the   circumstances.   Id.   When   reviewing   a

sentence on appeal, we presume a sentence within the Guideline

range is reasonable.         United States v. Allen, 491 F.3d 178, 193

(4th Cir. 2007).       We have reviewed the record and conclude that

the district court did not abuse its discretion in sentencing

Davis and that his sentence in the middle of the Guidelines

range is reasonable.

           We have reviewed Davis’s pro se claims and conclude

that the issues he raises that are cognizable on direct appeal

do not entitle him to relief. 2

           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We therefore affirm Davis’s conviction and sentence.

This court requires that counsel inform Davis in writing of his

right to petition the Supreme Court of the United States for

further review.       If Davis requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then


      2
       We decline to consider on direct appeal Davis’s claims
that he was not afforded effective assistance of trial counsel.
See, e.g., United States v. Benton, 523 F.3d 424, 435 (4th Cir.
2008).



                                     6
counsel   may   move     in   this     court   for   leave   to   withdraw     from

representation.        Counsel’s motion must state that a copy thereof

was served on Davis.          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
