                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4365


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL ANTHONY CORNWELL,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00216-RJC-3)


Submitted:   March 8, 2011                 Decided:   March 21, 2011


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Richard Lee Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael       Anthony     Cornwell     appeals   his    conviction        and

180-month sentence for two counts of conspiracy to distribute

cocaine, in violation of 21 U.S.C. § 846 (2006) (“Counts One and

Four”),     and    two     counts     of    possession     with    the       intent     to

distribute,       in     violation     of    21   U.S.C.     § 841(a)(1)        (2006),

(b)(1)(B) (“Counts Two and Five”).                    On appeal, he argues that

(1) there was insufficient evidence to sustain his convictions;

(2)   his   Sixth      Amendment      rights      were   violated       when    he    was

sentenced based on a higher drug quantity than found by the

jury; and (3) his Fifth Amendment rights were violated when the

district court allowed the prosecutor to show video footage of

his arrest and comment on his demeanor.                    Finding no reversible

error, we affirm.

            Cornwell       first     contends     that   there    was    insufficient

evidence to support his convictions and that the district court

should    have    granted    his     motion     for   acquittal.        We     review   a

district court’s denial of a Fed. R. Crim. P. 29 motion for

acquittal de novo.           United States v. Reid, 523 F.3d 310, 317

(4th Cir. 2008).           “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).                    We will uphold a jury’s

verdict “if, viewing the evidence in the light most favorable to

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the government, it is supported by substantial evidence.”                                Reid,

523    F.3d    at    317.       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.”            United States v. Alerre, 430 F.3d 681, 693

(4th    Cir.        2005)    (internal      quotation            marks      omitted).        In

resolving issues of substantial evidence, we do not reweigh the

evidence or reassess the factfinder’s determination of witness

credibility, see United States v. Brooks, 524 F.3d 549, 563 (4th

Cir.    2008),       and    “can    reverse       a   conviction         on   insufficiency

grounds only when the prosecution’s failure is clear.”                                  United

States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc)

(internal quotation marks omitted).

              To     prove   the     conspiracy       charged       in      Counts   One    and

Four,    the        Government      was    required         to     establish:        “(1)    an

agreement      to     possess      with   intent      to    distribute        cocaine       base

existed between two or more persons; (2) [Cornwell] knew of the

conspiracy; and (3) [Cornwell] knowingly and voluntarily became

part of the conspiracy.”              Reid, 523 F.3d at 317.                  Evidence of a

buy-sell transaction involving a substantial quantity of drugs,

repeated transactions, and continuing relationships can support

a finding of a conspiracy.                Id. (citing United States v. Burgos,

94 F.3d 849, 857 (4th Cir. 1996); United States v. Mills, 995

F.2d 480, 485 n.1 (4th Cir. 1993)).                           “[T]he testimony of a

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defendant’s accomplices, standing alone and uncorroborated, can

provide an adequate basis for conviction.”                   United States v.

Burns, 990 F.2d 1426, 1439 (4th Cir. 1993).             To prove possession

with the intent to distribute, the Government was required to

prove “(1) possession of the controlled substance; (2) knowledge

of the possession; and (3) intent to distribute.”                   See United

States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009).

          Cornwell was arrested while participating in a cocaine

transaction with a confidential informant to whom he had sold

cocaine several times.      The jury heard testimony from several of

Cornwell’s   accomplices    that        he   engaged   in    repeated   cocaine

transactions, was owed large sums of money, and patterned his

sales   similarly    to    the        incident    leading    to   his   arrest.

Additionally,   evidence         of     cocaine    residue    was   found   in

Cornwell’s personal business.             We hold that this evidence was

sufficient to support the jury’s verdict.

          Cornwell next argues that the district court violated

his Sixth Amendment rights when it sentenced him based on a

higher drug quantity than found by the jury.                  We review legal

questions that arise from the imposition of a sentence de novo.

United States v. Caplinger, 339 F.3d 226, 235 (4th Cir. 2003).

A judge does not violate the Sixth Amendment by finding facts

during sentencing.    United States v. Benkahla, 530 F.3d 300, 312

(4th Cir. 2008).     “Sentencing judges may find facts relevant to

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determining       a    Guidelines         range      by    a     preponderance          of     the

evidence,    so       long    as    the   Guidelines           sentence      is   treated         as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.”              Id.

            Here,       the       district      court      did    not     err     in    finding

Cornwell     responsible           for    a    larger      volume    of       cocaine        by    a

preponderance of the evidence.                      Moreover, Cornwell’s 180-month

sentence for his drug offenses was within the statutory maximum,

see 21 U.S.C. § 841(b)(1)(B), and there is no indication in the

record that the district court considered the Guidelines to be

mandatory.     Accordingly, we hold that Cornwell’s Sixth Amendment

rights were not violated.

            Lastly,          Cornwell         argues      that    the        district        court

violated    his       Fifth       Amendment     rights      when    it       admitted        video

footage of his silence when he was arrested and allowed counsel

for the Government to comment on it during closing argument.

Because Cornwell did not object to the videotape or comments at

trial,   his   claim         is    reviewed      for      plain    error.         See    United

States v. Olano, 507 U.S. 725, 731 (1993).                         Thus, we will affirm

the   district        court’s      judgment      unless     there       is   error      that      is

plain and affects Cornwell’s substantial rights.                              Fed. R. Crim.

P. 52(b).




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            Evidence that a defendant remained silent at the time

of arrest but before receiving Miranda * warnings is admissible at

trial.     United States v. Love, 767 F.2d 1052, 1063 (4th Cir.

1985).     Because Cornwell had not received Miranda warnings at

the time the video was recorded, we hold that the district court

did not violate Cornwell’s Fifth Amendment rights by allowing

the prosecution to show the video and comment on it.

            Accordingly, we affirm the district court’s judgment.

Consequently,    we   deny   Cornwell’s   motions   to   file   a    pro   se

supplemental brief and to hold the case in abeyance to allow him

to file a pro se reply brief.           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




     *
         Miranda v. Arizona, 384 U.S. 436 (1966).



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