                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4746


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

HENDRICK A. COUSAR, a/k/a Tony,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., District
Judge. (0:11-cr-02276-JFA-3)


Submitted:   August 20, 2013                 Decided:   August 27, 2013


Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Edye U. Moran, MORAN LAW OFFICES, Columbia, South Carolina, for
Appellant.   William N. Nettles, United States Attorney, Julius
N. Richardson, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Hendrick      A.      Cousar        appeals     his    conviction         and

240-month sentence imposed following the jury verdict finding

him guilty of conspiracy to distribute 280 grams or more of

cocaine   base       (“Count       One”),    in    violation    of   21     U.S.C.   § 846

(2006), and distribution of 28 grams or more of cocaine base

(“Count Six”), in violation of 21 U.S.C. § 841(a) (2006).                                 On

appeal, counsel argues that (1) the district court abused its

discretion      in    refusing       to     give    a   proposed     jury    instruction

advising the jury that Cousar could not be convicted on Count

One for conspiring with a government agent, and (2) the district

court imposed an unreasonable sentence on Count Six.                            Finding no

reversible error, we affirm.

               We   review     a    district       court’s     decision     to    give    or

refuse    to    give    a    particular       jury      instruction       for    abuse    of

discretion.         United States v. Passaro, 577 F.3d 207, 221 (4th

Cir. 2009).          We generally must “defer to a district court’s

decision to withhold a defense in a proposed jury instruction in

light of that court’s superior position to evaluate evidence and

formulate the jury instruction.”                    United States v. Powell, 680

F.3d 350, 356 (4th Cir.), cert. denied, 133 S. Ct. 376 (2012)

(internal quotation marks and alterations omitted).

               “As a general proposition a defendant is entitled to

an   instruction       as    to    any    recognized     defense     for     which   there

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exists evidence sufficient for a reasonable jury to find in his

favor.”      Matthews v. United States, 485 U.S. 58, 63 (1988); see

Powell, 680 F.3d at 356; see also United States v. Hicks, 748

F.2d 854, 857 (4th Cir. 1984) (“[A] defendant is entitled to an

instruction submitting to the jury any theory of defense for

which   there       is    a    foundation           in       the   evidence.”).           If   this

requirement is met, a district court commits reversible error

when it fails to provide an instruction requested by a defendant

only    if    the        instruction          “(1)           was   correct;     (2)   was       not

substantially covered by the court’s charge to the jury; and

(3) dealt     with       some      point       in       the    trial   so     important,       that

failure to give the requested instruction seriously impaired the

defendant’s       ability          to     conduct            his   defense.”        See    United

States v.     Lewis,          53   F.3d       29,       32    (4th   Cir.     1995)   (internal

quotation marks omitted).

             Cousar        argues         that      the        district     court     committed

reversible error in failing to instruct the jury that he could

not be convicted of conspiring only with a government agent.

Cousar relies in part on language from Hicks to argue that the

trial     judge      invaded            the    jury’s          fact-finding      function       by

considering whether the evidence was sufficient to support the

proposed instruction.

             In Hicks, this court cited with approval the Fifth

Circuit’s statement that:

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       If the trial judge evaluates or screens the evidence
       supporting   a  proposed   defense,   and   upon  such
       evaluation declines to charge on that defense, he
       dilutes the defendant’s jury trial by removing the
       issue from the jury’s consideration.    In effect, the
       trial judge directs a verdict on that issue against
       the defendant. This is impermissible.

Hicks, 748 F.2d at 857-58 (quoting Strauss v. United States, 376

F.2d    416,        419   (5th      Cir.     1967)).       However,        Hicks        itself

recognized that the appellant had a constitutional right to a

jury    instruction         on    his      alibi   defense      only   if       “there    was

sufficient alibi evidence to permit the factfinder to pass on

the issue.”          Hicks, 748 F.2d at 857.                   Similarly, viewing the

Strauss reference in context, the Fifth Circuit did not hold

that    the     trial     judge       was    required     to     submit     to    the    jury

instructions unsupported by the record.                         While concluding that

the     trial       judge     cannot        determine      whether        the     requested

instruction         relates      to   “a     believable     or    sensible        defense,”

Strauss recognized that the judge is tasked with “decid[ing]

whether       the    facts       constituting      the    defense      framed      by     the

proposed charge, if believed by the jury, are legally sufficient

to render the accused innocent,” and need only “be cautious and

unparsimonious in presenting to the jury all of the possible

defenses which the jury may choose to believe.”                            Id. (emphasis

added).       Our more recent opinions also have recognized that the

trial     court      need     not     provide      an    instruction       that    is     not

supported by the evidence adduced at trial.                         E.g., Powell, 680

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F.3d at 357 (affirming denial of proposed jury instruction on

“advice-of-counsel        defense”       after        concluding      district        court

properly found defendant “failed to provide evidence from which

a reasonable jury might find” in favor of that defense).

              Cousar also argues that United States v. Lively, 803

F.2d 1124 (11th Cir. 1986), is analogous to his case and compels

a finding that the district court committed reversible error.

However, we find this case readily distinguishable.                              In Lively,

the   Eleventh       Circuit    found    reversible         error    in    the     district

court’s failure to give a defendant’s proposed instruction that

he    could    not     have     conspired       with    a    government          agent   to

distribute cocaine.            Id. at 1128.       The court concluded that the

trial evidence was sufficient to support a jury finding that the

alleged       conspiratorial          agreement        arose        only     after       the

defendant’s coconspirator became an informant.                        Id. at 1127-28.

Moreover, the timing of the agreement was crucial to the theory

of    defense—that      the     defendant       was     unaware      of     his     alleged

coconspirator’s        intent    to    distribute       cocaine      until       after   the

coconspirator became a government agent.                    See id. at 1128.

              Here, the evidence adduced at trial simply did not

support a finding that Cousar conspired only with a government

agent.    While Cousar interacted with a government informant—his

codefendant      Laventa        Murray—on       two    occasions,          the     evidence

supported a finding that Cousar entered the charged conspiracy

                                            5
with Murray, if at all, only before Murray became an informant.

The    evidence   adduced      at   trial    therefore    did     not    provide    a

foundation for the proposed instruction.

             Moreover,    the    district    court’s     refusal    to    give   the

proposed charge did not impede Cousar’s ability to conduct his

defense.       In his defense, Cousar argued only that the alleged

coconspirators who testified against him were lying and that he

was    not   involved     in     their   crack    distribution          activities.

Cousar’s ability to argue this theory was in no way affected by

the court’s refusal to provide the requested instruction.                          We

therefore conclude that the district court did not abuse its

discretion in refusing to give this charge.

             Cousar next asserts that the district court imposed a

procedurally and substantively unreasonable sentence as to Count

Six.    Cousar asserts that the district court improperly imposed

a   sentence    above    the    Guidelines    range,     failed    to    adequately

consider the 18 U.S.C. § 3553(a) (2006) factors or explain its

chosen sentence, and imposed a sentence greater than necessary

to fulfill the goals of sentencing.              However, Cousar could not

have received a sentence lower than the one the district court

imposed,     given      the    240-month     statutory      mandatory       minimum

sentence applicable to Count One.             The sentence he received for

Count Six also was within the statutory sentencing range for

that offense.        Thus, any error the court committed in imposing

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concurrent sentences of 240 months on these counts is harmless.

See United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010)

(recognizing that procedural sentencing error is harmless “if

the resulting sentence was not longer than that to which the

defendant would otherwise be subject” (internal quotation marks

and alteration omitted)); United States v. Lynn, 592 F.3d 572,

576, 585 (4th Cir. 2010) (applying harmless error analysis to

procedural      sentencing     error,   and   recognizing          that    error     is

harmless if “it did not have a substantial and injurious effect

or influence on the result” (internal quotation marks omitted));

see also United States v. Farrior, 535 F.3d 210, 224 (4th Cir.

2008)    (“A    statutorily     required    sentence      .   .     .    is    per   se

reasonable.”).

            Accordingly, we affirm the district court’s judgment.

We deny Cousar’s motion for leave 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   this    court   and   argument     would   not   aid      the    decisional

process.



                                                                               AFFIRMED




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