                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-5240


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MIGUEL GARCIA NUNEZ, a/k/a Cuasito,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:05-cr-00211-RLV-DCK-2)


Submitted:   June 18, 2010                 Decided:   July 6, 2010


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Ann L. Hester, Angela Parrot, Cecilia Oseguera, Charlotte,
North Carolina, for Appellant. Edward R. Ryan, Acting United
States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A     grand     jury   indicted        Miguel    Garcia    Nunez    with

conspiracy to possess with intent to distribute methamphetamine,

cocaine,        and   marijuana,        in       violation      of     21      U.S.C.

§§ 841(b)(1)(A),       (b)(1)(B),      (b)(1)(C),      (b)(1)(D),      846   (2006),

and possession with intent to distribute at least fifty grams of

methamphetamine       (two     counts),       in    violation     of    21     U.S.C.

§ 841(a)(1), (b)(1)(B) (2006).            After a four-day jury trial, the

jury found Nunez guilty of all charges.                       At sentencing, the

district court imposed a variance sentence (below the advisory

Guidelines range) of 270 months’ imprisonment on each count, to

run concurrently.           On appeal, Nunez challenges the sufficiency

of the evidence to sustain the jury convictions as to the counts

that   charged            possession      with       intent      to      distribute

methamphetamine       and    argues    that   his    sentence    is    unreasonable

because the district court plainly erred in sentencing him under

an improperly calculated advisory Guidelines range.                    We affirm.

            We review de novo the district court’s denial of a

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

States v. Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129

S. Ct. 663 (2008).           A defendant challenging the sufficiency of

the evidence “bears a heavy burden.”                 United States v. Beidler,

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

omitted).       The jury’s verdict must be sustained “if, viewing the

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evidence in the light most favorable to the prosecution, the

verdict is supported by substantial evidence.”                     United States v.

Smith, 451 F.3d 209, 216 (4th Cir. 2006) (internal quotation

marks     omitted).        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).

In     reviewing    for     substantial        evidence,      we    consider     both

circumstantial and direct evidence and allow the Government all

reasonable inferences from the facts shown to those sought to be

established.       United States v. Harvey, 532 F.3d 326, 333 (4th

Cir.    2008).      This    court   does       not   weigh    evidence   or    review

witness credibility.         United States v. Wilson, 118 F.3d 228, 234

(4th Cir. 1997).          Rather, it is the role of the jury to judge

the credibility of witnesses, resolve conflicts in testimony,

and weigh the evidence.          United States v. Manbeck, 744 F.2d 360,

392 (4th Cir. 1984).            “Reversal for insufficient evidence is

reserved for the rare case where the prosecution’s failure is

clear.”      Beidler, 110 F.3d at 1067 (internal quotation marks

omitted).

             In his brief, Nunez claims the evidence at trial was

insufficient to support the jury’s verdict that he possessed

methamphetamine with the intent to distribute on March 3, 2005

(count five) and on May 9, 2005 (count nine).                         To convict a

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defendant    of    possession   with    the   intent       to    distribute,        the

government must prove: (1) possession of a narcotic controlled

substance; (2) knowledge of the possession; and (3) the intent

to distribute.      United States v. Collins, 412 F.3d 515, 519 (4th

Cir. 2005).       “A defendant is guilty of aiding and abetting if he

has knowingly associated himself with and participated in the

criminal venture.”       United States v. Burgos, 94 F.3d 849, 873

(4th Cir. 1996) (internal quotation marks and citation omitted).

We have reviewed transcripts of the jury trial in light of the

parties’     arguments    and    conclude     that        sufficient         evidence

supports the jury’s verdict as to both counts of possession with

intent to distribute methamphetamine.

            Nunez also claims that his sentence is procedurally

and   substantively       unreasonable        because           of     an     alleged

arithmetical error made by the district court in calculating his

sentence.     We review a sentence for reasonableness, applying an

abuse of discretion standard.           Gall v. United States, 552 U.S.

38, 51 (2007); see also United States v. Layton, 564 F.3d 330,

335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009).                             In so

doing, the court first examines the sentence for “significant

procedural     error,”     including       “failing        to        calculate      (or

improperly     calculating)     the    Guidelines         range,      treating      the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)     [(2006)]   factors,      selecting      a     sentence        based    on

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clearly erroneous facts, or failing to adequately explain the

chosen sentence. . . .”            Gall, 552 U.S. at 51.                The court then

“‘consider[s]     the       substantive      reasonableness        of    the    sentence

imposed.’”      United States v. Evans, 526 F.3d 155, 161 (4th Cir.)

(quoting Gall, 552 U.S. at 51), cert. denied, 129 S. Ct. 476

(2008).    If the sentence is within the Guidelines range, the

court applies a presumption of reasonableness.                          Rita v. United

States, 551 U.S. 338, 346-59 (2007) (upholding presumption of

reasonableness for within-Guidelines sentence).

           Based       on   a   total   offense      level   of     forty-one        and   a

criminal history category of I, the probation officer calculated

a Guidelines range of 324 to 405 months’ imprisonment.                               Nunez

argued for a downward variance based in part on an unwarranted

sentencing disparity among co-defendants.

           In    fashioning       Nunez’s        sentence,   the     district        court

“credit[ed] the disparity argument to the extent of three levels

which   would    put    defendant       at   a     39-1   level,”       and    the   court

“sentence[d Nunez] accordingly, in that the highest sentence for

the others at this point [was] 135 months.”                    The district court

added that “nevertheless, defendant’s role and offense conduct

was such that the court’s sentence is justified in that he was a

major source of supply and the key source in this particular

grouping of defendants.”           The court then sentenced Nunez, after

stating   it     had        considered       the     sentencing         factors      under

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§ 3553(a), to 270 months’ imprisonment on each count, to run

concurrently.

            On appeal, Nunez correctly notes that a three-level

reduction from offense level forty-one is offense level thirty-

eight,   not    thirty-nine      as    indicated       by    the     district    court.

Because Nunez did not object below, his claim is reviewed for

plain error.     “To establish plain error, [Nunez] must show that

an error occurred, that the error was plain, and that the error

affected [his] substantial rights.”               United States v. Muhammad,

478 F.3d 247, 249 (4th Cir. 2007).                     Even if Nunez satisfies

these requirements, “correction of the error remains within [the

court’s]       discretion,       which         [the         court]      should        not

exercise . . . unless          the     error      seriously           affect[s]       the

fairness,      integrity       or      public      reputation           of     judicial

proceedings.”         Id.     (internal       quotation       marks     and    citation

omitted).

            Here,     while    the    court    arguably       committed       error    in

stating that the resulting offense level after a three-level

variance was thirty-nine rather than thirty-eight, we find the

error    did   not    affect    Nunez’s       substantial          rights.      In    the

sentencing context, an error affects substantial rights if the

defendant can show that the sentence imposed “was longer than

that to which he would otherwise be subject.”                        United States v.

Washington,     404    F.3d     834,    849     (4th        Cir.     2005)    (internal

                                          6
quotation marks and citation omitted); see also United States v.

Miller, 557 F.3d 910, 916 (8th Cir. 2009) (“In the sentencing

context, an error was prejudicial only if there is a reasonable

probability that the defendant would have received a lighter

sentence but for the error.”).                  Even assuming that the district

court   erred     in    stating    that   the     resulting         offense     level    was

thirty-nine and not in stating that it intended to vary three

levels rather than two, Nunez cannot show that the court did not

intend to sentence him to 270 months.                          See United States v.

White, 405 F.3d 208, 221 (4th Cir. 2005) (expressing that in

conducting       plain    error    review       this     court       does     not    presume

prejudice    but       instead    requires       the    defendant       to     demonstrate

actual prejudice).

            In     this    case,    we    find         Nunez       cannot     show    actual

prejudice    in    the    court’s    imposition          of    a    270-month        sentence

based on an arguably incorrectly calculated Guidelines range.

Nunez cannot show any substantial likelihood that his sentence

would have been any different had the district court computed a

lower advisory Guidelines range of imprisonment.                            Nunez does not

point to any non-speculative basis for concluding that the court

would not have arrived at the same sentence had it started at a

lower range.           See United States v. Knight, ___ F.3d ___, 2010

WL 2220898 at *7 (4th Cir. June 4, 2010) (noting that, while it

may have been enough to satisfy Knight’s plain-error burden if

                                            7
the district court had explicitly connected the chosen sentence

to the advisory range, the court made no such statements and

therefore Knight’s assertions were pure speculation).                  Because

Nunez fails to show his substantial rights were affected, we

conclude he cannot establish plain error in the district court’s

presumably erroneous computation of the Guidelines range.                  We

further find no abuse of discretion in the chosen sentence.

          For     the    foregoing        reasons,    we     affirm    Nunez’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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