                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4183


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

AMANZA JAMES POLLINO, a/k/a Jiggy,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge. (1:07-cr-00046-jpj-pms-1)


Submitted:    March 30, 2009                  Decided:   May 1, 2009


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Joel C. Hoppe,
Assistant Federal Public Defender, Charlottesville, Virginia,
for Appellant. Julia C. Dudley, Acting United States Attorney,
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              A jury convicted Amanza James Pollino of conspiracy to

possess with intent to distribute and to distribute five grams

or   more      of     cocaine     base,          in     violation     of      21     U.S.C.

§§ 841(b)(1)(B),         846    (2006),      and       possession    with     intent     to

distribute five grams or more of cocaine base, in violation of

21   U.S.C.    § 841(b)(1)(B).            He     was    sentenced     to    120     months’

imprisonment.         On appeal, Pollino argues: (1) the evidence was

insufficient        to   support       the       jury’s        convictions;        (2)   the

admission of evidence relating to a traffic stop of Pollino on

April 12, 2007, created a prejudicial variance from the charges

in the indictment and, as “prior bad acts” evidence under Fed.

R. Evid. 404(b), it required a limiting instruction; and (3) the

sentencing     scheme     for    cocaine       base     offenses     under    21     U.S.C.

§ 841 violates the Due Process and Equal Protection clauses.

Finding no reversible error, we affirm.

              Pollino     first    challenges            the     sufficiency        of   the

evidence to support the jury’s convictions.                        This court reviews

de novo a district court’s denial of a motion, made pursuant to

Rule 29 of the Federal Rules of Criminal Procedure, for judgment

of acquittal.         United States v. Alerre, 430 F.3d 681, 693 (4th

Cir. 2005).         In conducting such a review, the court is obliged

to sustain a guilty verdict if, viewing the evidence in the

light   most        favorable     to   the       prosecution,        the     verdict     is

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supported by substantial evidence.                             United States v. Burgos, 94

F.3d    849,    862       (4th       Cir.     1996)       (en    banc)      (citing     Glasser       v.

United States, 315 U.S. 60, 80 (1942)).                               This court has “defined

substantial evidence as 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.”

Alerre,     430      F.3d        at     693      (internal            quotation      and      citation

omitted); see Burgos, 94 F.3d at 862.                                This court “must consider

circumstantial            as     well       as    direct         evidence,        and       allow    the

government the benefit of all reasonable inferences from the

facts     proven      to       those        sought        to    be     established.”            United

States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

               In evaluating the sufficiency of the evidence, this

court    does       not    assess       the      credibility           of   the    witnesses         and

assumes     that      the        jury       resolved           all    contradictions          in     the

testimony in favor of the Government.                                United States v. Brooks,

524 F.3d 549, 563 (4th Cir.), cert. denied, 129 S. Ct. 519

(2008).     This court “can reverse a conviction on insufficiency

grounds only when the prosecution’s failure is clear.”                                          United

States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (internal

quotation marks and citation omitted).

               To    prove       a    conspiracy           under       21   U.S.C.      §    846,   the

government      must       prove        (1)      an   agreement         between      two      or    more

persons to engage in conduct that violates a federal drug law,

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(2) the defendant’s knowledge of the conspiracy, and (3) the

defendant’s       knowing      and         voluntary      participation              in     the

conspiracy.      United States v. Strickland, 245 F.3d 368, 384-85

(4th Cir. 2001); see Burgos, 94 F.3d at 857.                               “By its very

nature,     a   conspiracy          is     clandestine        and       covert,       thereby

frequently      resulting      in    little      direct       evidence         of    such    an

agreement.”       Burgos, 94 F.3d at 857.                 Therefore, a conspiracy

generally       is    proved        by      circumstantial          evidence.               Id.

“Circumstantial       evidence       tending      to    prove       a    conspiracy         may

consist of a defendant’s relationship with other members of the

conspiracy, the length of this association, [the defendant’s]

attitude [and] conduct and the nature of the conspiracy.”                                   Id.

(internal quotations and citations omitted).

            To convict a defendant of possession with the intent

to distribute, the government must prove:                       (1) possession of a

narcotic controlled substance; (2) knowledge of the possession;

and (3) the intent to distribute.                United States v. Collins, 412

F.3d 515, 519 (4th Cir. 2005).                “A defendant is guilty of aiding

and abetting if he has knowingly associated himself with and

participated in the criminal venture.”                       Burgos, 94 F.3d at 873

(internal quotation marks and citation omitted).

             Pollino’s      main         contention     on    appeal       is       that    the

evidence linking him to crack cocaine was circumstantial, which

is   admittedly      permissible,         but,   in    his    case,      too    tenuous      to

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establish       beyond        a    reasonable          doubt       that    he    possessed      the

requisite knowledge.                 We have reviewed the record and we find

sufficient evidence to sustain the jury’s verdict.                                 Accordingly,

we find the district court did not err in denying Pollino’s

motion for acquittal as to both counts.

               Next,        Pollino       claims       the   introduction          of    evidence

relating        to     the        April    12,     2007        traffic      stop    created       a

prejudicial          variance       from     the       indictment         that   violated       his

rights    to    due        process.        The   indictment          charged      Pollino      with

conspiracy “on or about June 20, 2007.”                               The indictment cites

the same date for the second charge of possession with intent to

distribute.            The    traffic       stop       occurred       on    April       12,    2007.

Pollino argues that the admission into evidence of the April 12,

2007     stop        and     arrest       constituted          a     prejudicial        variance.

Pollino further claims that the admission of this “prior bad

acts evidence” under Fed. R. Evid. 404(b) required a limiting

instruction to the jury.

               A variance occurs when the evidence presented at trial

differs materially from the facts alleged in the indictment.

United States v. Bollin, 264 F.3d 391, 405 (4th Cir. 2001).

Only when the evidence presented at trial changes the elements

of the crime charged, such that the defendant is convicted of a

crime    other        than        that    charged       in     the     indictment,        is     the

difference fatal.              United States v. Randall, 171 F.3d 195, 203

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(4th Cir. 1999).           A variance that does not alter the crime

charged “does not violate a defendant’s constitutional rights

unless it prejudices [him] either by surprising him at trial and

hindering the preparation of his defense, or by exposing him to

the danger of a second prosecution for the same offense.”                         Id.

             The district court concluded that the April 12, 2007

traffic     stop    and   subsequent    arrest       were   not    “prior    bad    acts

evidence”     but    rather    “intrinsic       evidence”      providing     “relevant

testimony”     as    to    both   counts.            Pollino     was    charged     with

conspiracy in count one and the alleged discrepancy in offense

dates does not affect the essential elements of the crime.                              See

United States v. Queen, 132 F.3d 991, 999-1000 (4th Cir. 1997)

(specific dates are not elements of conspiracy offense).                                We

therefore     find    admission    of     the       contested     evidence    did       not

create a fatal variance.

             Additionally, the district court properly admitted the

evidence as intrinsic to the charged offense and not subject to

404(b).     Rule 404(b) only applies to acts extrinsic to the crime

charged.      Where testimony is admitted as to acts intrinsic to

the crime charged, and is not admitted solely to demonstrate bad

character, it is admissible.            United States v. Chin, 83 F.3d 83,

88   (4th    Cir.     1996).       Acts       are     intrinsic     when     they       are

“inextricably       intertwined    or   both        acts   are   part   of   a    single

criminal episode or the other acts were necessary preliminaries

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to the crime charged.”               Id. (quoting United States v. Lambert,

995 F.2d 1006, 1007 (10th Cir. 1993)).                      Moreover, evidence of

other    crimes       or   uncharged       conduct   is   “not    considered       ‘other

crimes’”    for       Rule   404(b)    purposes      if   it   “‘arose     out    of    the

same .     .      .        series     of     transactions         as     the      charged

offense, . . . or if it is necessary to complete the story of

the crime [on] trial.’”              United States v. Kennedy, 32 F.3d 876,

885 (4th Cir. 1994) (quoting United States v. Towne, 870 F.2d

880, 886 (2d Cir. 1989)).              Accordingly, we find the admission of

the contested evidence did not require a limiting instruction.

            Last, Pollino argues that the sentencing scheme under

21   U.S.C.        § 841       as     it     relates      to     cocaine        base     is

unconstitutional because it is not proportional to sentences for

powder cocaine and violates his rights to due process and equal

protection.           Pollino’s       constitutional       challenge       is     without

merit.      This      court    has    repeatedly       rejected    claims       that    the

sentencing disparity between powder cocaine and crack offenses

violates either equal protection or due process.                             See United

States     v.    Burgos,       94     F.3d    849,     876-77     (4th     Cir.     1996)

(collecting cases); United States v. Thomas, 900 F.2d 37, 39-40

(4th Cir. 1990).             We further note that Pollino’s reliance on

the Supreme Court’s decision in Kimbrough v. United States, 128

S.   Ct.   558     (2007),      is    misplaced.          Although     the      Court    in

Kimbrough found that district courts are permitted to disagree

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with    the   policies    underlying       the   Sentencing        Guidelines,    the

Court neither found § 841’s penalty provisions unconstitutional

nor     overruled       this    court’s       previous      holdings        rejecting

constitutional challenges to the 100:1 ratio.                 Id. at 572.

              Accordingly,      we   affirm      Pollino’s         convictions    and

sentence.      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




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