                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4832


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARIA CARBAJAL-NIETO,

                Defendant - Appellant.



                             No. 08-5139


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ESEQUIEL HERRERA-NIETO,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees,    District    Judge.       (5:06-cr-00037-RLV-DCK-9;
5:06-cr-00037-RLV-DCK-2)


Submitted:   July 20, 2010                 Decided:   August 6, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Chiege O. Kalu Okwara, Charlotte, North Carolina; Richard A.
Culler, CULLER & CULLER, P.A., Charlotte, North Carolina, for
Appellants. Edward R. Ryan, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               Esequiel Herrera-Nieto and Maria Carbajal-Nieto, who

are husband and wife, were tried together on various drug and

firearm       charges.         Esequiel    was    convicted     of    conspiracy     to

possess with intent to distribute cocaine and methamphetamine.

He was also convicted of five substantive possession with intent

to distribute charges and use or carry of a firearm during and

in relation to a drug trafficking crime.                    Maria was convicted of

conspiracy      and      one   substantive       offense.      Both    appeal    their

convictions, and Maria also appeals from her 235-month sentence.

We affirm.



                                            I.

               Esequiel    contends       that    the   district     court   erred    by

denying his motion for judgment of acquittal.                       He asserted that

the   evidence      was    insufficient      to    support    his    conviction      for

using or carrying a firearm during and in relation to a drug

trafficking crime or possession of a firearm in furtherance of a

drug trafficking crime.            We review de novo the denial of a Fed.

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

States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).                            When a

Rule 29 motion was based on a claim of insufficient evidence,

the jury’s verdict must be sustained “if there is substantial

evidence, taking the view most favorable to the Government, to

                                            3
support it.”          United States v. Abu Ali, 528 F.3d 210, 244 (4th

Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).                                   This court

“ha[s]    defined          ‘substantial          evidence’        as    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.

               We    “must     consider         circumstantial         as    well    as       direct

evidence, and allow the government the benefit of all reasonable

inferences          from     the    facts       proven       to   those      sought           to    be

established.”          United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982).               This court may not weigh the evidence or

review    the       credibility          of    the    witnesses.        United       States         v.

Allen, 491 F.3d 178, 185 (4th Cir. 2007).                                   If the evidence

“supports        different,             reasonable       interpretations,            the           jury

decides    which       interpretation            to    believe.”        United       States          v.

Murphy,     35      F.3d     143,        148    (4th     Cir.     1994).        A    defendant

challenging         the    sufficiency          of     the    evidence       faces    a        heavy

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

1997).

               To convict Esequiel of violating 18 U.S.C. § 924(c)

(2006), “the [G]overnment [had to] prove that [Esequiel] used or

carried a firearm during and in relation to a drug trafficking

crime     or     possessed          a     firearm      in     furtherance       of        a        drug

trafficking crime.”                United States v. Stephens, 482 F.3d 669,

                                                 4
673    (4th    Cir.    2007).         It    is        sufficient      if    the    defendant’s

possession of the firearm was constructive, “meaning that he

exercised, or had the power to exercise, dominion and control

over the firearm.”            United States v. Wilson, 484 F.3d 267, 282

(4th Cir. 2007).

               Here,    the        jury     found          specifically      that       Esequiel

carried    a    firearm      during        and    in       relation    to    the    conspiracy

charge, as well as one substantive charge (arising from a search

of    Esequiel’s       home).        The     jury       further      found    that      Esequiel

possessed a firearm in furtherance of the conspiracy charge and

two substantive charges (one arising from the search of his home

and the other involving the stop of his vehicle).                                    Thus, the

jury found that Esequiel violated § 924(c) in five different

ways,    any    one    of    which        would       be    sufficient      to    support   his

conviction.

               We easily find that the evidence was sufficient to

support       Esequiel’s      conviction.                  As   to   the    conspiracy,     one

witness       testified       that        Esequiel          began    carrying       a   firearm

regularly      during       drug    transactions            after    one    particular      drug

deal went bad.          Another witness testified that, on the date of

the relevant substantive offenses, he saw Esequiel at his home

with a gun in his hand.               This testimony alone, if believed, was

sufficient to support the jury’s verdict that Esequiel possessed

and carried a firearm for protection during the drug conspiracy,

                                                  5
as well as during the transaction at his home. 1                      Accordingly, we

affirm Esequiel’s conviction.



                                            II.

            Maria     contends       that    the        district     court    improperly

calculated      the   drug   amount         for    which       she   was     responsible.

Specifically,     she    asserts      that       she     was   wrongfully      attributed

with amounts for which the conspiracy was responsible before she

arrived in the United States on October 15, 2005. 2                        We review the

district     court’s      calculation             of     the     quantity      of    drugs

attributable to a defendant for sentencing purposes for clear

error.     United States v. Randall, 171 F.3d 195, 210 (4th Cir.

1999).

            Maria’s     claim    is    without          support.      Her     presentence

report     clearly      calculated      the            drug    quantity      based     upon

controlled buys between “late 2005 and August of 2006” and the

seizure    of   contraband      at    her    home.            Accordingly,     Maria   has

failed to show clear error by the district court.




     1
       In addition, we hold that the evidence also supported the
jury’s verdict in all other respects concerning Esequiel’s
firearm conviction.
     2
       Maria also asserts that, prior to her arrival in the
United States, she was too young to be held responsible for the
conspiracy’s drug amounts.



                                             6
                                         III.

               Maria next asserts that the district court did not

provide a sufficient explanation for rejecting her request for a

lower    sentence        and   for   choosing     the   imposed    sentence.           In

evaluating         the   sentencing     court’s    explanation     of     a    selected

sentence, we have consistently held that, while a district court

must consider the statutory factors and explain its sentence, it

need    not       explicitly   reference     18   U.S.C.    §   3553(a)       (2006)   or

discuss every factor on the record, particularly when the court

imposes       a    sentence    within    a   properly      calculated     Guidelines

range.        United States v. Johnson, 445 F.3d 339, 345 (4th Cir.

2006).    But, at the same time, the district court “must make an

individualized assessment based on the facts presented.” Gall v.

United States, 552 U.S. 38, 50 (2007). Moreover, the district

court    must       state   the    individualized       reasons   that    justify       a

sentence, even when sentencing a defendant within the Guidelines

range.    Rita v. United States, 551 U.S. 338, 356-57 (2007).                          The

reasons articulated by the district court for a given sentence

need not be “couched in the precise language of § 3553(a),” so

long as the “reasons can be matched to a factor appropriate for

consideration . . . and [are] clearly tied [to the defendant’s]

particular situation.” United States v. Moulden, 478 F.3d 652,

658 (4th Cir. 2007).              Because Maria argued for a sentence below

the advisory Guidelines range in district court, the adequacy of

                                             7
the court’s explanation is reviewed for harmless error.                              See

United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).

              We conclude that the district court’s explanation in

this case was adequate.             Maria argued for a below-Guidelines

sentence based upon the fact that she became involved in the

conspiracy through her husband and she did not know about his

dealings prior to her involvement.               She also noted that she did

not have a criminal history and that she was very young.                              In

imposing a sentence at the bottom of the Guidelines range, the

district court noted the “serious and pernicious drug dealing

enterprise of which the defendant was fully aware.”                          The court

rejected Maria’s youth as a factor to support a variance, noting

that   many    drug    dealers     are    the   same    age.         The    court   then

discussed     the     § 3553(a)    factors      and    found    that       they   either

supported a Guidelines sentence or were neutral, at best, but

that   none    supported    a    variance.       Because       the    district      court

provided      individualized       reasoning      for    the     within-Guidelines

sentence imposed, we reject Maria’s claim.



                                          IV.

              Finally, Maria contends that the district court should

have   sua    sponte     severed    her    trial       from    that    of    Esequiel.

Specifically, she asserts that there was evidence regarding the

conspiracy that pre-dated her involvement and that no limiting

                                          8
instructions were given.               The failure to order severance sua

sponte is reviewed for plain error.                  United States v. Hart, 273

F.3d 363, 369-70 (3d Cir. 2001).                  In general, the decision as to

whether to sever a trial is left to the sound discretion of the

district court.           Zafiro v. United States, 506 U.S. 534, 541

(1993).

               Absent    special       circumstances,          defendants      indicted

together should be tried together.                 United States v. McManus, 23

F.3d    878,    883     (4th    Cir.    1994).       To    succeed    on    appeal,    a

defendant claiming that the district court erred by failing to

sua    sponte    order     severance       must    make    a   colorable     claim    of

prejudice.       Id.      Here, the evidence at trial established that

Maria   and     Esequiel       conducted    drug    transactions       together,     and

many witnesses testified against both of them.                        While some of

the    evidence    may    have    been     relevant       to   the   charges   against

Esequiel only, the evidence against Maria was overwhelming and

she does not argue otherwise.               Thus, she is unable to show the

prejudice necessary to succeed on this claim.



                                           V.

               Based on the foregoing, we affirm Maria and Esequiel’s

convictions       and    Maria’s       sentence.          We   dispense     with   oral

argument because the facts and legal contentions are adequately



                                            9
presented in the materials before the court and argument would

not aid the decisional process.

                                                      AFFIRMED




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