                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4381


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERIC SMITH, a/k/a Capone, a/k/a Pone,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.      Jerome B. Friedman,
Senior District Judge. (4:08-cr-00147-JBF-FBS-14)


Submitted:   April 29, 2011                   Decided:   May 18, 2011


Before MOTZ, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Harry D. Harmon, Jr., Norfolk, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Howard J. Zlotnick, Assistant
United States Attorney, Matthew Vaughan, Third Year Law Student,
Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Eric Smith was convicted by a jury of conspiracy to

possess with intent to distribute marijuana and five kilograms

or    more   of   cocaine,    in    violation       of   21   U.S.C.       §§   841(a),

(b)(1)(A), 846 (2006), and three counts of using a communication

facility to facilitate a felony drug offense, in violation of 21

U.S.C.    § 843(b)     (2006).      The     district      court     imposed     a   life

sentence on the drug conspiracy, with three concurrent forty-

eight-month       sentences   for   the     three     convictions      for      using    a

communication facility to facilitate a felony drug offense.                             On

appeal,      Smith   challenges       the       sufficiency    of    the     evidence.

Specifically, he contends that the witnesses against him were

all   convicted      drug   dealers    who       testified    in    exchange     for     a

reduction in their sentences, and their biased and incredible

testimony was insufficient, as a matter of law, to support his

convictions.       We affirm.

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

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

States v. Green, 599 F.3d 360, 367 (4th Cir.), cert. denied, 131

S. Ct. 271 (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).                     A jury verdict must be

sustained “if, viewing the evidence in the light most favorable

to the prosecution, the verdict is supported by ‘substantial

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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 the rare case where

the prosecution’s failure is clear.”                            Id. (internal quotation

marks omitted).

               To establish Smith’s guilt under 21 U.S.C. § 846, the

evidence       must     show    that:    (1)        an       agreement     to      possess        and

distribute cocaine and marijuana existed between two or more

people;        (2)    Smith     knew    of     the       conspiracy;         and        (3)   Smith

knowingly       and     voluntarily      became          a    part    of   the       conspiracy.

United States v. Kellam, 568 F.3d 125, 139 (4th Cir.), cert.

denied, 130 S. Ct. 657 (2009).                  Since a conspiracy by its nature

is clandestine and covert, a conspiracy charge is usually proven

by circumstantial evidence.                  United States v. Yearwood, 518 F.3d

220,     225     (4th    Cir.     2008).           Evidence          tending       to     prove     a

conspiracy       may    include    a    defendant’s            relationship          with     other

members of the conspiracy, and the existence of a conspiracy may

be inferred from a development and collocation of circumstances.

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United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en

banc).       “Circumstantial       evidence       sufficient          to   support      a

conspiracy       conviction      need    not      exclude       every      reasonable

hypothesis of innocence, provided the summation of the evidence

permits a conclusion of guilt beyond a reasonable doubt.”                        Id.

            To establish Smith’s guilt under 21 U.S.C. § 843(b),

the   evidence    must   show    that    Smith:    (1)    used    a    communication

facility      (here,     a      cellular       telephone);        (2)      used        the

communication facility to facilitate the commission of a drug

offense; and (3) did so knowingly and intentionally.                        21 U.S.C.

§ 843(b); United States v. Johnstone, 856 F.2d 539, 542-43 (3d

Cir. 1988).

            After    reviewing     the     record,       we    conclude     that       the

evidence    was    sufficient     for    the    jury     to    conclude     beyond       a

reasonable doubt that Smith was guilty of conspiracy to possess

with intent to distribute marijuana and five kilograms or more

of cocaine, and of using a communication facility to facilitate

a felony drug offense on three occasions.                     Smith’s challenge to

the credibility of the Government’s witnesses is unavailing, as

we do not review a jury’s credibility determinations on appeal.

United States v. Wilson, 484 F.3d 267, 283 (4th Cir. 2007).

            Accordingly, we affirm the district court’s judgment.

We    dispense    with   oral    argument      because    the    facts     and    legal



                                           4
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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