                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-5096



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


SHAKEEM HERATIO CRAWFORD,

                Defendant - Appellant.



                            No. 08-4029



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


SHAKEEM HERATIO CRAWFORD,

                Defendant - Appellant.



Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:06-cr-00069-JPB-1)


Submitted:   July 2, 2008                Decided:   September 5, 2008


Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Lary D. Garrett, GARRETT & GARRETT, Moorefield, West Virginia, for
Appellant. Sharon L. Potter, United States Attorney, Thomas O.
Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          Shakeem Heratio Crawford was convicted after a jury trial

of one count of conspiracy to possess with intent to distribute and

to distribute in excess of fifty grams of crack cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2000); one

count of distribution of crack cocaine and two counts of possession

with intent to distribute crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1).      In the presentence report (PSR), the probation

officer grouped all counts and determined that Crawford’s relevant

conduct totaled between 351.96 and 355.209 grams of crack cocaine,

which yielded a base offense level of thirty-two pursuant to U.S.

Sentencing     Guidelines   Manual   (USSG)     §   2D1.1(c)(4)     (2007).

Crawford’s    prior   criminal   activity,    however,   resulted   in   his

designation as a career offender pursuant to USSG § 4B1.1(b)(B),

which increased his offense level to thirty-seven and mandated a

criminal history category of VI.          The Guidelines range was 360

months to life imprisonment.

             Crawford filed several objections to the PSR, only two of

which are relevant to this appeal.           First, he asserted that the

March 18, 1998, New York state conviction for attempted sale of a

controlled substance was not a felony conviction and thus could not

serve as a predicate for career offender sentencing.                He also

objected to the PSR’s determination of his drug quantity relevant

conduct as unsupported by the evidence at trial.             The district


                                  - 3 -
court overruled Crawford’s objection to the characterization of his

1998 conviction as a felony controlled substance offense and found

that he was a career offender, which mooted his other objections.

The court also denied Crawford’s request for a downward departure

or variance, and sentenced him to 360 months of imprisonment, ten

years   of    supervised    release,   and   a   $400   special   assessment.

Crawford timely appealed.       We affirm.

             On   appeal,   Crawford   asserts    several    errors   by   the

district court.      He first argues that the district court erred in

denying his motion for judgment of acquittal at the close of the

Government’s case, and in denying his motion for a new trial.               He

claims that the evidence was insufficient to send the case to the

jury, or to sustain the jury’s verdict, in that it was insufficient

to establish that he was in fact the person, “Nico,” described by

the   Government’s witnesses.     He does not assert that the crimes in

question did not occur, but rather that he was not the person who

committed those crimes.

             This court reviews the district court’s denial of a

motion for judgment of acquittal de novo, and its ruling on a

motion for a new trial for abuse of discretion.                   See United

States v. Ryan-Webster, 353 F.3d 353, 359 (4th Cir. 2003); United

States v. Rhynes, 206 F.3d 349, 360 (4th Cir. 1999) (en banc).               A

defendant challenging the sufficiency of the evidence faces a heavy

burden.      United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.


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1997). “[A]n appellate court’s reversal of a conviction on grounds

of insufficient evidence should be confined to cases where the

prosecution’s failure is clear.”         United States v. Jones, 735 F.2d

785, 791 (4th Cir. 1984).          A jury’s verdict must be upheld on

appeal if there is substantial evidence in the record to support

it.      Glasser v. United States, 315 U.S. 60, 80 (1942).                    In

determining whether the evidence in the record is substantial, this

court views the evidence in the light most favorable to the

government,    and     inquires   whether   there     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.    United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)

(en banc).    In evaluating the sufficiency of the evidence, we do

not review the credibility of the witnesses and assume that the

jury resolved all contradictions in the testimony in favor of the

government.    United States v. Romer, 148 F.3d 359, 364 (4th Cir.

1998).     Our review of the record leads us to conclude that the

evidence was sufficient to establish Crawford’s guilt.

            Crawford    next   asserts   that   the   Government      committed

reversible error during the testimony of Trooper Brian Bean when

the Assistant United States Attorney (AUSA) attempted to elicit

hearsay testimony.      Although he states that the standard of review

is for abuse of discretion, Crawford does not assert any error by

the district court in its response to his objections to this


                                    - 5 -
testimony. Contrary to Crawford’s argument, the Government did not

place inadmissible hearsay before the jury, because the district

court sustained his objections before Trooper Bean could state the

basis for his belief that Crawford’s information was consistent

with other information developed in the investigation.

           To the extent Crawford’s argument can be construed as

alleging prosecutorial misconduct, it is without merit. A claim of

prosecutorial misconduct is reviewed to determine whether the

conduct complained of so infected the trial with unfairness as to

make the resulting conviction a denial of due process.                 United

States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002).            To prevail

under this standard, Crawford must show that “the prosecutor’s

remarks or conduct were improper and, second . . . that such

remarks or conduct prejudicially affected his substantial rights”

so as to deprive him of a fair trial.       Id.     The questioning in this

instance   was   not   improper,   but     rather    part   of   the   normal

examination of a witness that may elicit an objectionable answer.

Nor did this questioning prejudice Crawford, as no actual hearsay

was placed before the jury.    Crawford is not entitled to relief on

this claim.

           Crawford also argues that the district court erred in

sustaining the Government’s objection and prohibiting him from

mentioning an indicted co-conspirator as a missing witness.             “The

district court is afforded broad discretion in controlling closing


                                   - 6 -
arguments and is only to be reversed when there is a clear abuse of

its discretion.”      United States v. Rhynes, 196 F.3d 207, 236 (4th

Cir. 1999).     “It is well settled that the rule regarding missing

witness instructions is that if a party has it peculiarly within

his [or her] power to produce witnesses whose testimony would

elucidate the transaction, the fact that he [or she] does not do it

creates the presumption that the testimony, if produced, would be

unfavorable.”       United States v. Brooks, 928 F.2d 1403, 1412 (4th

Cir. 1991) (internal quotation marks omitted).                      Crawford has

produced no evidence that the witness was accessible only to the

Government, or any other reason that he could not have subpoenaed

the witness to testify at trial.            The district court did not abuse

its   discretion     in    sustaining      the     Government’s     objection    to

Crawford’s argument.

             Crawford next asserts that the district court erred in

overruling    his    objection      to    the    AUSA’s   statements      regarding

reasonable doubt during final argument, and that the AUSA plainly

erred in that same argument in stating that the Constitution had

nothing to do with this case.              Our review of the statements in

question, in the context of the arguments as a whole, leads us to

conclude   that     the   remarks    about       standards   of   proof   were   not

improper, but were an appropriate response to the remarks of

Crawford’s counsel.         The AUSA’s remarks about the Constitution

were, although perhaps unnecessary, not improper.                      The jury’s


                                         - 7 -
function   was   to   decide    whether       the   Government   had     produced

sufficient evidence to establish the facts necessary to prove

Crawford’s guilt.      Any Constitutional issues were the exclusive

province of the trial judge.         Crawford is not entitled to relief on

this claim.

           Crawford next argues that the district court erred in

concluding that he was a career offender and that his relevant

conduct greatly exceeded fifty grams of crack cocaine.                  Crawford

was classified as a career offender based on two prior felony

convictions for a controlled substance offense. Crawford claims he

has only one prior felony conviction of a controlled substance

offense.   In considering the district court’s application of the

Guidelines, this court reviews factual findings for clear error and

legal conclusions de novo.        United States v. Allen, 446 F.3d 522,

527 (4th Cir. 2006).           Crawford argues, as he did before the

district court, that his 1998 New York conviction for attempted

sale of heroin is not a felony controlled substance offense.                    Our

review of the record convinces us otherwise.              The district court

properly determined that Crawford was a career offender, and

correctly calculated his Guidelines sentencing range.                  Because he

was   properly   classified     as    a   career    offender,    any    error    in

determining the relevant conduct drug quantity had no effect on his

Guidelines range.




                                      - 8 -
            Crawford’s final argument is that his 360-month sentence

is an abuse of discretion in that the district court erred in

denying his motion for departure or variance because his criminal

history category overstated the seriousness of his past criminal

conduct.    Regarding Crawford’s request for a downward departure,

the    record    reflects   that    the     district    court    recognized      its

authority   to    depart    but    concluded    that    a   departure      was   not

warranted on the facts of this case.                  The court’s decision is

therefore not reviewable on appeal.            United States v. Brewer, 520

F.3d 367, 371 (4th Cir. 2008).

            We review a sentence for reasonableness, applying an

abuse of discretion standard.          Gall v. United States, 128 S. Ct.

586, 597 (2007).      As discussed above, Crawford’s Guidelines range

was correctly calculated, and the record reveals that the district

court explicitly stated that it considered the factors set forth in

18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008), and explained its

reasons for selecting the sentence imposed. Crawford’s sentence is

thus   without    procedural      defect.      This    court    presumes    that   a

sentence imposed within the properly calculated Guidelines range is

reasonable.      United States v. Go, 517 F.3d 216, 218 (4th Cir.

2008); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007)

(upholding presumption of reasonableness for within-Guidelines

sentence). The record contains nothing that indicates the district




                                      - 9 -
court abused its discretion in selecting a 360-month sentence,

which was the bottom of the applicable Guidelines range.

            Accordingly,   we   affirm    Crawford’s   convictions   and

sentence.    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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