                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-4498


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JESSEE DANE COX,

                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-00032-jpj-pms-8)


Submitted:   April 16, 2010                 Decided:   June 22, 2010


Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Krysia Carmel Nelson, NELSON & TUCKER, PLC, Charlottesville,
Virginia, for Appellant.     Timothy J. Heaphy, 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Unpublished opinions are not binding precedent in this circuit.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:

             Jessee Dane Cox appeals from the life sentence imposed

following a jury trial on one count of conspiracy to possess

with intent to distribute methamphetamine, in violation of 21

U.S.C. §§ 841(b)(1)(A), 846 (2006).                    On appeal, Cox argues that

the district court erred in denying his Federal Rule of Criminal

Procedure     29    motions      for    acquittal.          Finding      no    reversible

error, we affirm.

             We review the district court’s denial of a Rule 29

motion de novo.        United States v. Alerre, 430 F.3d 681, 693 (4th

Cir. 2005).         A jury’s verdict “must be sustained if there is

substantial       evidence,      taking    the      view    most    favorable     to     the

Government, to support it.”               Glasser v. United States, 315 U.S.

60,    80   (1942).         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.”        Alerre,         430     F.3d    at    693    (internal

quotation marks omitted).               We “may not weigh the evidence or

review      the    credibility     of     the      witnesses       [because]      [t]hose

functions are reserved for the jury.”                      United States v. Wilson,

118 F.3d 228, 234 (4th Cir. 1997) (internal citation omitted).

             To     prove     conspiracy          to     possess     with      intent     to

distribute, the government must prove that: “(1) an agreement to

possess     [methamphetamine]          with       intent    to     distribute     existed

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between    two   or    more    persons;   (2)    the    defendant       knew    of   the

conspiracy;      and    (3)   the   defendant     knowingly       and    voluntarily

became a part of this conspiracy.”               United States v. Burgos, 94

F.3d 849, 857 (4th Cir. 1996).                  Because of its nature, the

existence of a conspiracy is generally proven by circumstantial

evidence, which “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. at 857-58 (alteration in original) (internal

quotation marks omitted).

            Cox specifically argues that the evidence presented by

the Government at trial varied impermissibly from the indicted

conspiracy in that the Government’s evidence sought to establish

the existence of multiple conspiracies outside the timeframe of

the   indicted     conspiracy.        Cox     further    alleges        that    he   was

prejudiced by the claimed variance.

      [A] “variance” occurs when the evidence at trial
      establishes facts materially different from those
      alleged   in  the   indictment.    In   a  conspiracy
      prosecution, a defendant may establish the existence
      of a material variance by showing that the indictment
      alleged a single conspiracy but that the government’s
      proof at trial established the existence of multiple,
      separate conspiracies.

United    States   v.    Kennedy,    32   F.3d    876,    883    (4th     Cir.    1994)

(internal    citations        omitted).       However,    a     material       variance

warrants reversal of a conviction only if the variance infringed


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the defendant’s “‘substantial rights’ and thereby resulted in

actual prejudice.”          Id.        A defendant proves actual prejudice by

showing that “there are so many defendants and so many separate

conspiracies       before     the      jury     that       the    jury    was     likely       to

transfer evidence from one conspiracy to a defendant involved in

an    unrelated     conspiracy.”               Id.     (internal         quotation          marks

omitted).     A defendant may also prove prejudice upon a showing

that the variance “surpris[ed] him at trial and hinder[ed] the

preparation of his defense” or “expos[ed] him to the danger of a

second    prosecution       for    the    same       offense.”          United    States       v.

Randall, 171 F.3d 195, 203 (4th Cir. 1999).

            We     have     reviewed       the       record       and     find    that        the

Government’s       evidence         did    not        materially         vary     from        the

conspiracy charged in the indictment.                      Further, we find that the

Government’s       evidence       was     sufficient         to    support       the    jury’s

verdict     when    viewed        in    the        light    most    favorable          to     the

Government.        The    testimony        elicited         from    Cox’s       alleged       co-

conspirators established the existence of a single conspiracy in

the    summer      of     2006.               Cox      admitted          to     distributing

methamphetamine he bought from his alleged co-conspirators that

summer in an interview with a police officer investigating the

conspiracy.         Moreover,           testimony          from    Cox’s      alleged         co-

conspirators       corroborated           Cox’s        admissions.              See     United

States v. Abu Ali, 528 F.3d 210, 234 (4th Cir. 2008) (stating

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that “it is a settled principle . . . that a conviction must

rest upon firmer ground than the uncorroborated admission or

confession of the accused made after commission of a crime”)

(internal quotation marks omitted).        Therefore, we find that the

district court did not err in denying Cox’s Rule 29 motion.

            Accordingly, we affirm the judgment of the district

court.     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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