                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4452


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

VINCENT HERNANDEZ, a/k/a Vin Rock, a/k/a Barrack,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:10-cr-00266-JFM-3)


Submitted:   March 28, 2014                 Decided:   April 4, 2014


Before SHEDD, AGEE, and FLOYD, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


John A. Bourgeois, Ezra S. Gollogly, KRAMON & GRAHAM, PA,
Baltimore, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, Peter Marshall Nothstein, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Vincent Hernandez was convicted after a bench trial of

all    three      counts      charged      in      his    superseding        indictment:

conspiracy to distribute and possess with intent to distribute

marijuana      and    280    grams    or   more      of     cocaine    base       (“crack”)

(Count   1);      possessing     a    firearm        in     furtherance      of    a     drug

trafficking crime, in violation of 18 U.S.C. § 924(c) (2012)

(Count 2); and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g) (2012) (Count 3).                           The district

court sentenced Hernandez to sixty months of imprisonment on

Counts 1 and 3, to run concurrently, and to sixty months on

Count 2, to run consecutively, for a total of 120 months of

imprisonment.         Hernandez appeals raising two issues: (1) whether

his convictions are supported by substantial evidence, and (2)

whether the district court erred by denying his motion for a new

trial.      For      the    reasons   that        follow,    we    affirm    Hernandez’s

convictions and sentence but remand to the district court for

correction of clerical error.

            A     defendant     who     challenges        the      sufficiency      of    the

evidence to support his conviction bears a heavy burden, United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997), because

we    review    the     issue    in     the       light     most    favorable      to     the

Government.       Glasser v. United States, 315 U.S. 60, 80 (1942).



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Reviewing the evidence as required, we find the convictions are

supported by substantial evidence and therefore affirm.

               We    observe,         however,     that    the     district    court’s

criminal judgment denotes that Hernandez’s drug conspiracy in

Count 1 involved an unspecified amount of crack and refers to

the superseding indictment.                 But in pronouncing its verdict, the

court concluded that it could only find twenty-eight grams in

the conspiracy beyond a reasonable doubt (J.A. 386-87), and in a

later       memorandum     opinion       the   court    noted    that   “it   convicted

[Hernandez]         of   the       lesser   included    offense    of   conspiracy    to

distribute and possess with intent to distribute 28 grams or

more of cocaine base because it found that only 28 to 280 grams

of cocaine were foreseeable to Hernandez as a member of the

conspiracy.”         (J.A. 530). ∗

               Although        a    court   speaks     through    its   judgments    and

orders, see Murdaugh Volkswagen, Inc. v. First Nat’l Bank, 741

F.2d 41, 44 (4th Cir. 1984), in criminal cases, the general rule

is that the oral pronouncement of the sentence governs.                           Rakes

v. United States, 309 F.2d 686, 687-88 (4th Cir. 1962).                        We thus

conclude that the conflict between the criminal judgment and all

other record facts in this case is clerical error that should be

        ∗
       The Government concedes on appeal that Hernandez was only
found guilty of distributing 28 grams of crack in Count 1. See
Appellee’s Br. at 4.



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corrected.     See Fed. R. Crim. P. 36.               Thus, we remand this case

to the district court with instructions to amend the criminal

judgment to       reflect    that    the     conspiracy      in    Count    1    involved

twenty-eight grams or more of cocaine base.

            Next, Hernandez alleges that the district court erred

by denying his motion for a new trial.                  In his Fed. R. Crim. P.

33 motion, Hernandez noted that a confidential informant, who

testified in his case, later retained some crack following a

controlled buy in an unrelated case.                  Hernandez claimed that the

informant’s       conduct    in    that     unrelated       case    constituted      new

evidence in his trial and established grounds for his Rule 33

motion.     The district court denied the motion noting that other

evidence,    separate       from    the    confidential       informant,        supported

his convictions.       We find no abuse of discretion in the district

court’s denial of the motion.                   See United States v. Robinson,

627 F.3d 941, 948 (4th Cir. 2010) (providing review standard and

five-factor test for analyzing Rule 33 claims).

            Accordingly,       we    affirm       Hernandez’s       convictions      and

sentence    but     remand    to    the     district    court      for     the    limited

purpose of correcting the clerical error, specified above.                            We

dispense     with    oral     argument       because        the    facts    and    legal

contentions    are    adequately          presented    in    the   materials       before

this court and argument would not aid the decisional process.

                                                             AFFIRMED AND REMANDED

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