                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4876


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

CHERYL L. GOFF,

                  Defendant – Appellant.



                              No. 09-4883


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

STEVEN C. GREEN,

                  Defendant – Appellant.



Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg.      Irene M. Keeley,
District Judge. (1:09-cr-00021-IMK-2; 1:09-cr-00021-IMK-1)


Submitted:   November 3, 2010               Decided:   December 10, 2010


Before SHEDD, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


William L. Pennington, Morgantown, West Virginia; Jacob A.
Manning, DINSMORE & SHOHL, LLP, Wheeling, West Virginia, for
Appellants.   Betsy C. Jividen, Acting United States Attorney,
Andrew R. Cogar, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              A jury convicted Cheryl L. Goff and Steven C. Green of

one   count    each       of    conspiracy             to    possess    with       the    intent      to

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

21 U.S.C. § 846 (2006), and Goff of one count of maintaining a

drug-involved premises, in violation of 21 U.S.C. § 856(a)(1)

(2006).        The    district         court       sentenced           Green       to    97    months’

imprisonment         and       Goff    to        262        months’    imprisonment            on    the

conspiracy         count        and    a      concurrent             term     of        240    months’

imprisonment         on    the        maintaining             count.          On       appeal,      Goff

maintains      that       the    evidence         is        insufficient          to    support      her

convictions and that the district court abused its discretion in

imposing      sentence.             Green     maintains          that       the    district         court

abused its discretion in denying his motions for a mistrial and

for a new trial and in admitting Goff’s statements against him.

We affirm.

              “A     defendant             challenging          the     sufficiency            of    the

evidence to support [her] conviction[s] bears a heavy burden.”

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

(internal quotation marks omitted).                             We will uphold the jury’s

verdict “if, viewing the evidence in the light most favorable to

the   [G]overnment,            it     is    supported          by     substantial         evidence.”

United    States      v.       Reid,       523    F.3d        310,    317    (4th       Cir.     2008).

“Substantial evidence is evidence that a reasonable finder of

                                                   3
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).           In    reviewing         for

substantial evidence, we consider both circumstantial and direct

evidence and allow the Government all reasonable inferences from

the    facts    shown       to    those       sought       to    be       established.           United

States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008).                                          We do not

weigh evidence or review witness credibility.                                    United States v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997).                                   Rather, it is the

role of the jury to judge the credibility of witnesses, resolve

conflicts       in    testimony,             and     weigh       the       evidence.             United

States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).

               The   offense          of     maintaining         a    drug-involved            premises

under    21    U.S.C.       § 856(a)          requires          proof      that     the       defendant

(1) knowingly         (2)    opened,          leased,       rented,         or     maintained        any

place (3) for the purpose of manufacturing, distributing, or

using    any    controlled            substance.           See       21    U.S.C.    § 856(a)(1);

United States v. Russell, 595 F.3d 633, 642 (6th Cir.), cert.

denied,       ___     S. Ct.          ___,      No.       09-11002,          2010        WL     2102243

(Oct. 4, 2010);         United         States        v.    Verners,         53     F.3d       291,   295

(10th Cir. 1995); United States v. Onick, 889 F.2d 1425, 1431

(5th Cir.       1989).                Goff     contends          that        the     evidence         is

insufficient to support her conviction for the maintaining count

because       the    Government’s            key     witness         was    unbelievable.            We

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reject this challenge because witness credibility is not subject

to appellate review, Wilson, 118 F.3d at 234, and, as evidenced

by its finding of guilt, the jury resolved any conflicts in

testimony     in    favor       of   the    Government          and    determined        the

Government’s witnesses to be sufficiently credible, see Manbeck,

744 F.2d at 392.          Additionally, after review of the record, we

conclude there was sufficient evidence from which a jury could

find beyond a reasonable doubt that Goff maintained a residence

for the purpose of distributing cocaine base.                          Further, because

the evidence is sufficient to support Goff’s conviction on the

maintaining count, we reject her challenge to the sufficiency of

the   evidence      supporting       the    conspiracy          count,       a     challenge

premised on the argument that the evidence is insufficient to

support her conviction on the maintaining count.

            Goff    also    challenges          her    sentence,       asserting        three

grounds for vacatur: first, that the district court treated the

Sentencing Guidelines as presumptively reasonable; second, that

the   court    failed      to    adequately           explain    its        rationale    for

imposing sentence; and third, that the sentence is substantively

unreasonable.       We review the district court’s sentence under a

“deferential       abuse-of-discretion           standard.”            Gall      v.   United

States, 552 U.S. 38, 41 (2007).                  This review entails appellate

consideration        of     both      the        procedural           and        substantive

reasonableness of the sentence.             Id. at 51.

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              In    determining            procedural       reasonableness,         we    first

assess       whether      the     district       court      properly     calculated         the

defendant’s Guidelines range.                       Id. at 49, 51.         We must then

consider whether the district court treated the Guidelines as

mandatory, failed to consider the 18 U.S.C. § 3553(a) (2006)

factors and any arguments presented by the parties, selected a

sentence      based       on    “clearly       erroneous       facts,”    or       failed    to

explain      sufficiently            the   selected     sentence.        Id.       at    50-51;

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                                  We

also review whether the district court made “an individualized

assessment based on the facts presented.”                        Gall, 552 U.S. at 50;

see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)

(holding that, while the “individualized assessment need not be

elaborate or lengthy, . . . it must provide a rationale tailored

to     the    particular         case . . . and          [be]    adequate          to    permit

meaningful         appellate           review”        (internal        quotation          marks

omitted)).

              When reviewing for substantive reasonableness, we take

into     account       the      “totality      of     the    circumstances.”              Gall,

552 U.S.      at    51.         We    accord     a    sentence    within       a    properly-

calculated         Guidelines          range     an      appellate       presumption         of

reasonableness.           See United States v. Abu Ali, 528 F.3d 210, 261

(4th Cir. 2008).             Such a presumption is rebutted only by showing

“that the sentence is unreasonable when measured against the

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[18 U.S.C.] § 3553(a) factors.”                  United States v. Montes-Pineda,

445    F.3d   375,    379   (4th   Cir.      2006)    (internal    quotation    marks

omitted).

              In this case, the district court properly calculated

Goff’s sentencing ranges under the U.S. Sentencing Guidelines

Manual (2008), and no record evidence supports Goff’s assertion

that the court treated those ranges as mandatory.                    In explaining

its    decision      to     impose     the       concurrent,      within-Guidelines

sentences of 262 and 240 months’ imprisonment, the court stated

that    it    had    considered      the   18      U.S.C.   § 3553(a)      sentencing

factors and the arguments of Goff’s counsel concerning Goff’s

resolve to spend time with her family and whether the imposition

of a within-Guidelines sentence would be greater than necessary

to achieve the purposes of sentencing.                  The court also addressed

Goff’s history and characteristics, the nature and circumstances

of her offense, and the need for the sentence to provide just

punishment for Goff, afford adequate deterrence, and protect the

public.       The    respective      sentences       fall   within   the    properly-

calculated Guidelines ranges, and Goff fails to overcome the

appellate presumption of reasonableness this court affords to

these sentences.            Accordingly, we conclude that the district

court did not abuse its discretion in sentencing Goff.

              Turning to Green’s challenges, he maintains that the

district court erred by denying his motion for a mistrial based

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on    the     untimely        disclosure          of     the    Government’s           fingerprint

analysis of a package of cocaine base.                            According to Green, his

theory of the defense was that the Government was not thorough

in its investigation, and trial counsel highlighted this fact by

eliciting from the Government’s case agent that investigators

had the ability to perform a fingerprint analysis and that, if

such    an       analysis          had     showed       that     the     fingerprints          of    a

co-conspirator were present on the package, such analysis would

negate the co-conspirator’s testimony that Green was always in

possession of the conspiracy’s supply of cocaine base.                                         Thus,

Green asserts that counsel’s credibility was damaged when the

Government        elicited          from    the     case       agent    that     a     fingerprint

analysis of the package had been performed.

                 We review the denial of a motion for a mistrial for

abuse of discretion.                 United States v. Dorlouis, 107 F.3d 248,

257    (4th      Cir.    1997)       (stating       that       “denial      of   a     defendant's

motion for a mistrial is within the sound discretion of the

district         court       and    will     be     disturbed        only      under     the     most

extraordinary           of    circumstances”).                 “In     order     for    the    trial

court’s ruling to constitute such an abuse of discretion, the

defendant         must       show    prejudice.”               United    States        v.   Dorsey,

45 F.3d 809, 817 (4th Cir. 1995).                         Reversal is required only if

there       is    a     clear       abuse     of        discretion       and     a     “reasonable

possibility           that    the    jury's        verdict       was    influenced”         by      the

                                                    8
error.     United States v. Seeright, 978 F.2d 842, 849 (4th Cir.

1992) (internal quotation marks omitted).                      Because our review of

the record reveals that Green cannot show any prejudice from the

untimely       production      of    the     fingerprint       analysis,       this       claim

fails.

               Next, Green challenges under Bruton v. United States,

391 U.S. 123 (1968), the admission of the statements of Goff —

who did not testify at their joint trial — that she knew Green

and    other    co-conspirators           and   smoked       cocaine    base    the       night

before they were arrested.                   Green contends that, although the

statements,         standing        alone,      were    not     incriminating,             they

implicated him in the conspiracy when viewed in light of other

evidence presented at trial.                    Because Green did not object in

the district court to the admission of these statements, our

review is for plain error, which exists when clear or obvious

error affects the defendant’s substantial rights.                               See United

States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).

               In   Bruton,    the       Supreme     Court     held    that    a    criminal

defendant’s         Sixth   Amendment        right     to    cross-examine         witnesses

against    him      is   violated        when   a   non-testifying       co-defendant’s

out-of-court         statement      is     admitted     at    their     joint      trial     to

inculpate the defendant.              See Bruton, 391 U.S. at 126.                  However,

a     “Bruton       problem    exists        only      to    the      extent       that    the

codefendant’s statement in question, on its face, implicates the

                                                9
defendant.”          United    States      v.   Locklear,   24   F.3d   641,     646

(4th Cir. 1994).        Additionally, a statement that is not facially

incriminating is admissible, even if it is incriminating when

linked with other evidence introduced.               See Richardson v. Marsh,

481 U.S. 200, 208-11 (1987).               Because the challenged statements

were not facially incriminating to Green, their admission did

not violate Bruton.           Green therefore fails to show plain error.

           Finally, Green contends that the district court erred

in denying his Fed. R. Crim. P. 33 motion for a new trial.                       We

review a district court’s denial of a motion for a new trial

under   Rule    33    for     abuse   of    discretion.      United     States   v.

Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).                     To warrant a new

trial   based    on     newly-discovered        evidence,   a    defendant     must

demonstrate that: (1) the evidence is newly-discovered; (2) he

has been diligent in uncovering it; (3) the evidence is not

merely cumulative or impeaching; (4) the evidence is material to

the issues involved; and (5) the evidence would probably produce

an acquittal.         See id.      Unless the defendant demonstrates all

five of these factors, the motion should be denied.                        United

States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989).

           Here, the evidence that formed the basis of Green’s

motion for a new trial — the cellular telephone records of one

of Green’s co-conspirators — was not newly-discovered, as it was

available to Green prior to and during trial.                Moreover, because

                                           10
Green’s    conviction     was    supported      by   evidence     other     than    the

testimony of this co-conspirator, we conclude that this is not

one   of   the    “exceptional     rare   case[s]”       where   a   new    trial    is

warranted    on    the   basis    of   impeachment       evidence.       See     United

States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993) (internal

quotation marks omitted).

            We    therefore      affirm   the   district     court’s       judgments.

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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