                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4078


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MANCER L. BARRINGTON, III,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:08-cr-00004-RAJ-FBS-2)


Submitted:   January 25, 2010              Decided:   February 19, 2010


Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lawrence H. Woodward, Jr., Charles B. Lustig, SHUTTLEWORTH,
RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia,
for Appellant.    Dana J. Boente, United States Attorney, D.
Monique Broadnax, Special Assistant United States Attorney,
Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Mancer L. Barrington, III, appeals his conviction for

conspiracy to distribute and possess with intent to distribute

cocaine    and    cocaine      base,      in       violation       of    21    U.S.C.       § 846

(2006), and       possession with intent to distribute cocaine base,

in    violation     of    21   U.S.C.     §    841(a)(1)         (2006).         Finding       no

reversible error, we affirm.



                                              I.

            On November 8, 2007, Norfolk Police Department Vice

and   Narcotics     Investigators         Jemal       Davis,        Richard      Stocks,      and

Lionel    Jackson       were   traveling       in     an      unmarked        police    vehicle

searching     for    Stephen        Wesby,         whom     they     suspected         of    drug

activity.         The     officers      observed          a    silver        Infiniti       Q-45;

suspecting that it was Wesby’s vehicle, the officers followed it

to a residence at 2738 Victoria Avenue in Norfolk.                                The driver

exited the car, entered the house and remained there for five to

seven    minutes,        returned    to    the       car,     and    drove      away.         The

officers thereafter initiated a traffic stop of the vehicle on

the ground that its middle brake light was not functioning.                                   The

driver’s    identification           revealed         him       to      be     Mancer       Louis

Barrington, III.           Officer Davis noted a strong marijuana odor,

and Barrington volunteered that he was currently on bond for

possession with intent to distribute marijuana.                                After Officer

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Davis informed Barrington that he smelled marijuana, Barrington

admitted to smoking marijuana the night before and conceded that

the odor could be coming from his jacket.                       Barrington consented

to a search of his person, which revealed $3834 in cash.                           A drug

dog then alerted to the glove compartment of the vehicle, where

the officers uncovered $10,780 in cash.                    After this finding, the

officers arrested Barrington.

            The       officers       then    returned      to    the     residence     on

Victoria Avenue, where the owner gave the officers consent to

search for narcotics and contraband.                    As the officers entered

the residence, Malik Carson, one of the residents, was walking

down stairs wearing a cooking apron; upon reaching the bottom of

the   stairs,     Carson      fled    out    the   front    door.        Officer    Davis

proceeded    upstairs,        where     he    recovered      a    cell    phone,     nine

sandwich bags of cocaine, crack cocaine drying on a napkin, a

loaded revolver, a digital scale, baking soda, a hot plate, a

box of sandwich bags, and a combination safe.                            When officers

apprehended Carson, they recovered two bags of cocaine powder,

seven sandwich bags of crack cocaine, and $820.                          Later testing

confirmed that the substances recovered from the upstairs room

and Carson’s person amounted to 34.92 grams of cocaine base and

291.06 grams of cocaine.

            Carson would later inform investigators that he and

Barrington      had    been    friends       since   childhood.          Carson     began

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selling     cocaine      and     cocaine      base       in   2007     and,       after    his

grandmother      passed        away    in    September         2007,        he    approached

Barrington      about    furnishing         additional        cocaine       for   Carson    to

sell to help keep his grandmother’s house.                        At the time of his

arrest,    Carson       was    purchasing        from     Barrington         14    grams    of

cocaine for $400 on a weekly basis.

             Evidence at trial indicated that on November 8, 2007,

Carson    had   called        Barrington     at    11:49      a.m.     to    request      more

cocaine; Barrington missed the call but called him back at 11:51

a.m. and again at 12:02 p.m.                 Barrington agreed to meet Carson

at the Victoria Avenue residence.                    Upon arriving at the house,

Barrington told Carson that he thought the police were following

him and that he wanted to leave the cocaine and his firearm with

Carson.     Because Carson had not heard from Barrington after he

left the house, Carson called Barrington’s cell phone at 1:31

p.m.     The police investigators arrived at the house at roughly

2:35 p.m.

             Barrington        and    Carson      were    ultimately         indicted      for

conspiracy to distribute and possess with intent to distribute

cocaine and cocaine base, in violation of 21 U.S.C. § 846 (2006)

(Count One), possession with intent to distribute cocaine base

and cocaine, respectively, in violation of 21 U.S.C. § 841(a)(1)

(2006) (Counts Two and Three), and possession of a firearm in

furtherance of a drug trafficking offense, in violation of 18

                                             4
U.S.C. § 924(c) (2006) (Count Four).                          The indictment charged

Barrington alone with possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g) (2006) (Count Five).

             Barrington      filed       a   pretrial        motion    to     suppress      the

currency and cell phones recovered from him during the November

8 traffic stop, which the district court granted.                            The motion to

suppress     covered       all     evidence         and     statements       obtained    from

Barrington    during       the     traffic          stop,    including       the   two     cell

phones found on Barrington’s person.

             Prior to trial, Carson pleaded guilty to Count One and

agreed to testify against Barrington.                        Carson also consented to

a   search    of    his     cell       phone,       which     revealed       the   calls    to

Barrington     on     November         8.           Based    upon     this     information,

investigators       obtained       a    warrant        to    search    the     cell     phones

retrieved from Barrington during the traffic stop.                              Thereafter,

Barrington filed a motion in limine, seeking to exclude evidence

from his two cell phones, which the district court denied.

             The district court conducted a four-day jury trial.

During voir dire, Barrington raised a Batson challenge after the

Government struck four of the eight African-American members of

the    jury        pool.           After        considering           the     Government’s

nondiscriminatory reasons for the strikes, the district court

ordered the Government to withdraw one of its four strikes.                                 The



                                                5
jury   as   finally          composed    contained    four     African-Americans,

including the juror reinstated to the panel.

            At the close of the Government’s evidence, Barrington

moved for a judgment of acquittal under Federal Rule of Criminal

Procedure 29.         The district court granted the motion as to Count

Five, finding that the Government had failed to introduce any

evidence    of    a    prior    felony    conviction.         The   district   court

denied the motion as to the other counts.                Barrington then filed

a written Rule 29 motion contending that Count Two and Count

Three were duplicative.               The district court denied that motion,

as well as the defendant’s renewed Rule 29 motion at the close

of all the evidence.

            The       jury    found    Barrington    guilty    of   Count   One   and

Count Three, and acquitted him on Count Two and Count Four.

Because Barrington had two prior convictions for felony drug

offenses, Count One mandated a life sentence.                       See 21 U.S.C.

§ 841(a)(1) & (b)(1)(A) (2006).                Accordingly, the district court

sentenced Barrington to life imprisonment on Count One and 360

months imprisonment on Count Three, to be served concurrently.

Barrington filed a timely appeal.



                                          II.

            On appeal, Barrington raises three challenges to his

conviction, which we consider in turn.

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                                          A.

            First,     Barrington       contends      that    the    district     court

erred in allowing the Government to introduce evidence from his

cell   phone   at     trial.      The     parties     agree    that        Barrington’s

argument is an extension of his earlier motion to suppress.                            We

review the district court’s findings of fact for clear error,

“giv[ing] due weight to inferences drawn from those facts by

resident judges and local law enforcement officers.”                        Ornelas v.

United States, 517 U.S. 690, 699 (1996).                 We review the district

court’s ultimate legal conclusion de novo.                   Id.     And, “[b]ecause

the district court denied the motion to suppress, we construe

the evidence in the light most favorable to the government.”

United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).

            During     the     November    8,    2007    traffic          stop,   police

recovered two cell phones from Barrington.                          Barrington later

moved to suppress the evidence obtained during that stop, and

the district court granted that motion, suppressing all of the

evidence seized during the traffic stop, including Barrington’s

cell phones.        Prior to trial, however, Carson consented to a

search of his cell phone, which was recovered during the search

of   the   Victoria    Avenue    residence       on   November       8.      Because    a

search of the call logs extracted from Carson’s phone showed

several    calls    between     Carson     and   Barrington         on     November    8,

investigators applied for a search warrant to search the two

                                          7
cell phones recovered from Barrington.                    The search warrant was

granted, but Barrington filed a motion in limine to exclude any

evidence obtained from the warrant.                     The district court found

the    evidence      admissible       under      the    doctrine     of   inevitable

discovery.          At    trial,    the   Government      introduced      a   document

listing the call log for Carson’s phone, as well as a document

providing the call log from Barrington’s two phones.

             On appeal, Barrington argues that the district court

erred in permitting the Government to introduce the call logs

from    Barrington’s        cell    phones.       The     improper    admission     of

evidence is subject to harmless error review.                    See Fed. R. Crim.

P. 52(a) (“Any error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded.”); Fed.

R. Evid. 103(a) (noting evidentiary errors support reversal only

if    they   affect       “substantial      right”).        Erroneously       admitted

evidence is harmless if a reviewing court is able to “say, with

fair    assurance,        after     pondering     all    that     happened    without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.”                     Kotteakos v. United

States, 328 U.S. 750, 765 (1946); United States v. Abu Ali, 528

F.3d 210, 231 (4th Cir. 2008).

             Even assuming the district court erred in permitting

the    admission     of    the     call   logs   for    Barrington’s      phones,   we

conclude     that    the    error    is   harmless.        Barrington’s       physical

                                            8
phones were never entered into evidence, only the log showing

that he and Carson called each other several times on November

8, 2007.     That information, however, is largely duplicative of

the information provided by the call log for Carson’s phone.

Barrington does not contest the admissibility of that call log.

The only difference between the two logs was that Barrington’s

call log included the length of each call, a minor distinction

that is harmless.         Moreover, the call logs were a small portion

of   the   Government’s      case.      Carson     testified       that    he   and

Barrington spoke on the phone November 8, 2007, to set up their

drug transaction; the call logs simply confirmed that testimony.

Accordingly, this claim affords Barrington no relief.

                                       B.

            Next,    Barrington      challenges    the    sufficiency      of   the

evidence    used     to    convict    him   on     Counts    One     and    Three.

Barrington bears a “heavy burden” in contesting the sufficiency

of the evidence supporting a jury verdict.                  United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation

marks omitted).       His conviction must be affirmed if, reviewing

the evidence in the light most favorable to the Government, any

rational trier of fact could have found the essential elements

of   the   crime    beyond   a   reasonable      doubt.     United    States     v.

Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc).                          The

Government receives the benefit of “all reasonable inferences

                                        9
from    the   facts    proven    to    those     sought     to   be   established.”

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

              Having   reviewed       the    record,   we    conclude    that   the

Government      presented       sufficient       evidence        to   sustain   the

convictions on Count One and Count Three.                        As to Count One,

conspiracy to distribute and possess with intent to distribute

fifty or more grams of cocaine and cocaine base, the Government

presented the testimony of Carson in addition to the testimony

of four witnesses who testified to purchasing cocaine and/or

cocaine base from Barrington in amounts ranging from 3.5 grams

to 9 ounces.      These witnesses testified to a similar pattern in

making their purchases--that they would contact Barrington at a

cell phone number, and that Barrington would drive alone to meet

them.    Likewise, they testified that Barrington charged $400 for

3.5 grams of cocaine (an “eight ball”) and as much as $6500 for

9 ounces of cocaine.            The witnesses identified several of the

same locations where these drug transactions were consummated.

              The Government also presented sufficient evidence to

convict Barrington of Count Three, possession with intent to

distribute 291.06 grams of cocaine.                The cocaine referenced in

Count Three was the total amount of cocaine recovered from the

search of the Victoria Avenue residence.                     Three investigators

testified that Barrington entered the residence and remained for

several minutes.        Carson testified that Barrington dropped off

                                            10
the cocaine Carson had just ordered and also left additional

cocaine because Barrington believed he was being followed by the

police.       The phone logs for Carson’s cell phone corroborated

this story:      Carson called Barrington less than one hour before

Barrington      arrived     at     the      Victoria           Avenue        residence       and

Barrington called Carson back two minutes later.                                    Barrington

then   called    Carson    again     ten     minutes       later.            The    amount    of

cocaine      recovered     from    the      search        of     the    Victoria        Avenue

residence,      when     coupled      with         the     additional              contraband,

including      the   digital       scale,     baking           soda,    hot        plate,    and

sandwich bags, was sufficient to prove an intent to distribute.

              Barrington attacks the credibility of Carson and the

four additional witnesses against him, but the jury, not the

reviewing court, is the judge of the witnesses’ credibility.                                  As

we    have    explained,    “[i]n     reviewing           the        sufficiency       of    the

evidence, we are not entitled to assess witness credibility, and

we assume that the jury resolved any conflicting evidence in the

prosecution’s favor.”            United States v. Jeffers, 570 F.3d 557,

565    (4th     Cir.),     cert.     denied,        130         S.     Ct.     645     (2009).

Accordingly, we reject Barrington’s challenge to the sufficiency

of the evidence.

                                            C.

              Finally,     Barrington            argues        that      the        Government

violated Batson v. Kentucky, 476 U.S. 79 (1986), in striking

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four African-American members of the venire panel.                          The Equal

Protection      Clause    of    the       Fourteenth    Amendment    to    the   United

States Constitution forbids the use of peremptory challenges for

a racially discriminatory purpose.                See Batson, 476 U.S. at 86.

           Batson        created      a    three-step    process     for   evaluating

claims that peremptory challenges were used in a discriminatory

manner.

     First, the defendant must make a prima facie showing
     that   the   prosecutor   has    exercised    peremptory
     challenges on the basis of race.        Second, if the
     requisite showing has been made, the burden shifts to
     the   prosecutor    to   articulate    a    race-neutral
     explanation for striking the jurors in question.
     Finally, the trial court must determine whether the
     defendant has carried his burden of proving purposeful
     discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59 (1991).

           As to the prosecutor’s burden under the second step,

the Court has explained, “[u]nless a discriminatory intent is

inherent   in    the     prosecutor’s        explanation,      the   reason      offered

will be deemed race neutral.”                 Hernandez, 500 U.S. at 360; see

also Purkett v. Elem, 514 U.S. 765, 769 (1995) (“What it means

by a ‘legitimate reason’ is not a reason that makes sense, but a

reason that does not deny equal protection.”).

           Finally, in the third prong, “[t]he trial court then

[has] the duty to determine if the defendant has established

purposeful discrimination.”                Batson, 476 U.S. at 98.          Because a

“judge’s     findings      in    the       context     under   consideration       here

                                             12
largely    will    turn    on    evaluation          of   credibility,       a    reviewing

court ordinarily should give those findings great deference.”

Id. at 98 n.21; Hernandez, 500 U.S. at 364.                         Thus, a finding of

no discrimination is a factual finding reviewed for clear error.

Hernandez, 500 U.S. at 364; Jones v. Plaster, 57 F.3d 417, 421

(4th Cir. 1995).

            We find no clear error in the district court’s denial

of    Barrington’s     Batson        challenge.             Barrington,      an    African-

American, raised a Batson challenge after the Government struck

four of the eight African-American members of the venire.                                    The

Government       proffered       a     non-discriminatory            reason       for     each

strike:     the Government struck one female juror because she was

sleeping,    another       female       juror       because    of    her    demeanor         and

disinterested appearance, and a third female juror because she

had   a   family    member       who    was     a    drug     addict.       Finally,         the

Government struck a fourth female juror because she worked for a

rental car company.             The district court noted that the reasons

were “nondiscriminatory”               but   found     some    of   the    “bases       to    be

insubstantial.”       The district court thus ordered the Government

to withdraw the strike of the rental car agent and permitted the

others to stand.

            On     appeal,      Barrington          simply     states      that    striking

fifty     percent         of     the         African-American           jurors          proves

discrimination.            We     conclude,          however,       that    such        meager

                                              13
statistical evidence, while probative under Miller-El v. Dretke,

545 U.S. 231, 240-41 (2005), cannot alone carry the day.                          See,

e.g.,   Coulter      v.   McCann,   484     F.3d   459,    468    (7th   Cir.    2007)

(denying      habeas      relief    under      Batson     and     Miller-El      where

prosecution used ninety percent of its strikes against African-

American jurors).         More importantly, the statistical evidence is

not entirely favorable to Barrington.                 Four members of the jury

that    was    ultimately     seated      were     African-Americans       and     the

Government passed the first four African-American members of the

jury panel.      Barrington has marshaled no additional evidence of

intentional discrimination and, accordingly, the district court

did not commit clear error in denying his Batson challenge.



                                       III.

              For the foregoing reasons, Barrington’s conviction and

sentence are affirmed.         As Barrington is represented by counsel,

we deny his motion to file a pro se supplemental brief.                             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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