                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 14-4304


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL T. MCGEE,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:13-cr-00023-FPS-JES-1)


Submitted:   December 31, 2014             Decided:   February 10, 2015


Before WILKINSON, GREGORY, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Elgine McArdle, MCARDLE LAW OFFICES, Wheeling, West Virginia,
for Appellant.      William J. Ihlenfeld, II, United States
Attorney, Robert H. McWilliams, Jr., Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael McGee was convicted, following a jury trial,

of conspiracy to possess cocaine with intent to distribute, in

violation     of    21   U.S.C.    §§ 841(b)(1)(C),        846     (2012)    (“Count

One”), and was acquitted of possessing cocaine with intent to

distribute,    in    violation     of   21      U.S.C.   § 841(a)(1),       (b)(1)(C)

(“Count    Two”).        The    district       court   sentenced    McGee     to   262

months’ imprisonment.           McGee timely appeals his conviction and

sentence, arguing that (1) the district court erred in admitting

evidence pursuant to Federal Rule of Evidence 404(b); (2) there

was insufficient evidence to convict him on Count One; (3) the

district    court     violated     McGee’s       constitutional     right     to    be

present during discussion and formulation of a response to a

jury question during deliberations; (4) the district court erred

in designating McGee a career offender; and (5) the district

court erred in applying a two-level enhancement for obstruction

of justice.    Finding no reversible error, we affirm.

                                        I.

            We review a district court’s evidentiary rulings for

abuse of discretion.           United States v. Taylor, 754 F.3d 217, 226

n.* (4th Cir.), petition for cert. filed, ___ S. Ct. ___ (Sept.

4, 2014) (No. 14-6166).           An abuse of discretion occurs only when

the   district      court      “acted   arbitrarily        or    irrationally      in

admitting evidence.”           United States v. Williams, 445 F.3d 724,

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732   (4th     Cir.    2006)    (citation         and    internal      quotation      marks

omitted).

              Rule 404(b) prohibits the admission of “[e]vidence of

a crime, wrong, or other act . . . to prove a person’s character

in order to show that on a particular occasion the person acted

in accord with the character.”                     Fed. R. Evid. 404(b).               Such

evidence is “admissible for another purpose, such as proving

motive,       opportunity,       intent,         preparation,        plan,     knowledge,

identity, absence of mistake, or lack of accident.”                            Id.   To be

admissible, the evidence must be “(1) relevant to an issue other

than the general character of the defendant; (2) necessary to

prove    an   element      of   the    charged      offense;     and    (3)    reliable.”

United    States      v.   Hodge,     354    F.3d    305,      312   (4th     Cir.   2004).

Additionally, the prejudicial effect of the evidence must not

substantially outweigh its probative value.                      Id.

              Evidence of other bad acts also “may be introduced if

it concerns acts intrinsic to the alleged crime because evidence

of such acts does not fall under Rule 404(b)’s limitations.”

United    States      v.   Otuya,      720   F.3d       183,   188     (4th   Cir.   2013)

(internal quotation marks and brackets omitted), cert. denied,

134 S. Ct. 1279 (2014).               Evidence is intrinsic “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

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Cir. 1994) (internal quotation marks omitted).                  Evidence is also

intrinsic “if it is necessary to provide context relevant to the

criminal charges.”         United States v. Basham, 561 F.3d 302, 326

(4th Cir. 2009) (internal quotation marks omitted).

            McGee   argues     that     the    district        court     erred     in

admitting   evidence   of     five    controlled      buys     in   November     2012

involving    a   Government     informant.           He   contends      that     this

evidence served no purpose other than to “pollute the waters” of

McGee’s conspiracy charge because the buys were too remote in

time or geography to be relevant.              McGee also argues that the

district court abused its discretion in admitting evidence of

uncharged drug distribution.           We disagree.       Here, the Government

introduced the controlled buys as evidence of the conspiracy.

The court also properly admitted the contested evidence under

Kennedy because it arose out of the same series of transactions

and was necessary to complete the story of the crimes on trial.

                                       II.

            McGee   next    asserts     that   the    evidence       presented     at

trial was insufficient to sustain his conviction on Count One.

“A   defendant   challenging     the    sufficiency       of   the     evidence    to

support his conviction bears a heavy burden.”                   United States v.

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

marks omitted).     The jury verdict must be sustained when “there

is substantial evidence in the record, when viewed in the light

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most favorable to the government, to support the conviction.”

United    States       v.     Jaensch,      665      F.3d     83,    93     (4th      Cir.   2011)

(internal quotation marks omitted).                          “[S]ubstantial 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).       We do not weigh the credibility of the evidence or

resolve any conflicts in the evidence.                              Beidler, 110 F.3d at

1067.     “Reversal for insufficient evidence is reserved for the

rare    case    where        the    prosecution’s            failure       is   clear.”         Id.

(internal quotation marks omitted).

               To    convict       McGee    of       Count    One,     the      Government      was

required       to     prove    beyond       a    reasonable          doubt      the    following

elements: (1) an agreement between McGee and one or more people

to engage in conduct that violates federal drug law; (2) McGee’s

knowledge       of     the    conspiracy;            and     (3)    McGee’s        knowing      and

voluntary participation in the conspiracy.                           See United States v.

Howard, No. 13-4296, __ F.3d __, 2014 WL 6807270, at *4 (4th

Cir.    Dec.    4,    2014).        This     may      be     done    by    either      direct    or

circumstantial evidence.                   United States v. Hickman, 626 F.3d

756, 763 (4th Cir. 2010).

               We conclude that that there was sufficient evidence

for a reasonable jury to find beyond a reasonable doubt that a

conspiracy      existed.            The    evidence          at    trial     established        the

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existence      of      a    drug    distribution         system     involving       McGee    as

cocaine     supplier.              Although        McGee    did     not     know    everyone

involved, the Government did not have to prove that McGee “knew

all    of   his     co-conspirators            or    all    of     the    details     of    the

conspiracy.”           United States v. Burgos, 94 F.3d 849, 861 (4th

Cir. 1996) (en banc).                Instead, McGee knew that his buyer acted

as a middleman for a third person; this proved a conspiracy.

             Moreover, through its informant, the Government showed

that   McGee      was       involved     in    a    conspiracy       in    November        2012.

Testimony from the informant revealed that McGee had controlled

substances      readily           available    and       worked    with    a   supplier      to

ensure quick sales.                This correlated with other testimony that

McGee completed cocaine sales within twenty-four hours of a buy

request.       Therefore,           a   jury    could      infer    that,      as   early     as

November 2012, McGee had a steady supplier who knew that he was

redistributing the cocaine to others.

             The Government also introduced evidence of overt acts

within the Northern District of West Virginia.                             Co-conspirators

testified that they met in West Virginia prior to driving to

McGee in Ohio for the actual buy.                          Thus, even if McGee never

sold   drugs      in       West    Virginia,       his    co-conspirators       met    there,

which established an overt act in West Virginia in furtherance

of the conspiracy.



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             To the extent that McGee argues that his acquittal on

Count    Two    undermines       his   conviction      on   Count     One,    he   is

incorrect.        “[I]t     is    well-settled       that   a   defendant     cannot

challenge his conviction merely because it is inconsistent with

a jury’s verdict of acquittal on another count.”                     United States

v. Louthian, 756 F.3d 295, 305 (4th Cir.), cert denied, 135 S.

Ct.   421    (2014).        Moreover,    the    Government      is   not     required

“either to allege or prove an overt act in a conspiracy charged

under 21 U.S.C. § 846.”            United States v. Clark, 928 F.2d 639,

641 (4th Cir. 1991).             Thus, McGee’s acquittal of an underlying

overt act did not negate the existence of a conspiracy.

                                        III.

             McGee next asserts that the district court violated

his right to be present during discussion and formulation of a

response to a jury question during deliberations.                     Federal Rule

of Criminal Procedure 43 provides that a defendant has the right

to be present at every stage of trial, including when the judge

communicates with the jury.              When a defendant fails to raise

this argument before the district court, we review for plain

error.      United States v. Strieper, 666 F.3d 288, 292 (4th Cir.

2012).      To establish plain error, an appellant must show “(1)

error,   (2)    that   is    plain,     and    (3)   that   affects    substantial

rights.”       United States v. Thomas, 669 F.3d 421, 424 (4th Cir.

2012) (internal quotation marks omitted).

                                          7
               While    the    district         court    should       not    have       begun    to

discuss      and   formulate        a    response       to   the    jury     question       while

McGee    was     absent,      McGee       has   not     shown      that     his    substantial

rights were affected.              McGee’s attorney was present at all times

during the court’s discussion, and McGee’s absence was brief;

upon    his     arrival       in    the    courtroom,         the     court       re-read       the

question to him, after which the bulk of the discussion and

formulation occurred.                See United States v. Harris, 814 F.2d

155, 157 (4th Cir. 1987) (per curiam) (finding no prejudice “in

light of the fact that defendant’s counsel was present and that

prompt remedial measures were taken by the district court” once

defendant was brought into courtroom).

               Moreover,      the       question      itself       was    one     of    law,    not

fact, to which the court gave a direct answer guiding the jury

to     the    instructions         and     no    more.          See      United        States    v.

Arriagada, 451 F.2d 487, 489 (4th Cir. 1971).                                   Also, McGee’s

counsel never challenged this issue until the instant appeal.

See id. (“Had it appeared to the appellant or his counsel that

the     action     of   the        District      Court       involved       any        prejudice,

objection would have been promptly entered by the appellant and

not tardily raised after verdict.”).                         Accordingly, we find no

reversible error.




                                                8
                                          IV.

            McGee next contends that the district court erred in

sentencing him as a career offender based on his convictions for

aggravated robbery in 1989, drug trafficking in 2004, and drug

trafficking in 2009.          When a defendant challenges the district

court’s calculation of the Sentencing Guidelines, we review the

district    court’s   “legal       conclusions       de      novo   and    its   factual

findings for clear error.”            United States v. Medina-Campo, 714

F.3d 232, 234 (4th Cir.), cert. denied, 134 S. Ct. 280 (2013).

            The Guidelines provide that a defendant is a career

offender if he was at least eighteen years old at the time of

the instant offense, the instant offense is a drug felony or

crime of violence, and the defendant has at least two prior

felony   convictions    for    drug       offenses      or    crimes      of   violence.

U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1(a) (2013).                             A

prior conviction qualifies as a predicate offense only if the

sentence    of   imprisonment       exceeded       thirteen         months     and     “was

imposed within fifteen years of the defendant's commencement of

the instant offense . . . [or] resulted in the defendant being

incarcerated during any part of such fifteen-year period.”                             USSG

§§   4A1.2(e)(1),     4B1.2    cmt.       n.3.     We     have      reviewed     McGee’s

arguments   as   to   each    of    the    three   convictions            at   issue    and

conclude that the district court properly determined that all of



                                           9
the convictions were predicate offenses for designating him a

career offender.

                                        V.

            Finally,     McGee      challenges    the   two-level     enhancement

for obstruction of justice.             We find that this issue is moot

because the offense level established under the career offender

Guideline was greater than the offense level calculated using

the    Guidelines      for   drug    offenses    and    any   specific    offense

characteristic or adjustment.           Thus, the obstruction enhancement

did not affect McGee’s sentence.

            Accordingly, we affirm the district court’s judgment.

We    dispense   with    oral    argument    because    the   facts    and   legal

contentions      are   adequately     presented    in   the   materials      before

this court and argument would not aid the decisional process.



                                                                         AFFIRMED




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