                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5208


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ABEL CASTILLO RANGEL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:95-cr-00486-CMH-4)


Submitted:   September 15, 2011           Decided:   October 26, 2011


Before DUNCAN, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant.    Neil H. MacBride, United States Attorney, Kara
Martin Traster, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A   federal    jury      convicted       Abel    Castillo         Rangel    of

conspiracy to possess with intent to distribute and distribute

marijuana, in violation of 21 U.S.C. § 846 (2006); possession

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

§ 841(a) (2006); and distribution of marijuana, in violation of

21 U.S.C. § 841(a).        The district court sentenced Rangel to 121

months of imprisonment and he now appeals.                  Finding no error, we

affirm.

            Rangel   first       argues       that    there    was      insufficient

evidence to support the convictions.                  We    review        a     district

court’s decision to deny a Rule 29 motion for a judgment of

acquittal de novo.         United States v. Smith, 451 F.3d 209, 216

(4th Cir. 2006).     A defendant challenging the sufficiency of the

evidence faces a heavy burden.                United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).               The verdict of a jury must be

sustained “if, viewing the evidence in the light most favorable

to the prosecution, the verdict is supported by ‘substantial

evidence.’”       Smith,       451   F.3d     at     216    (citations        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 and citation omitted).



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            Moreover, “[t]he jury, not the reviewing court, weighs

the credibility of the evidence and resolves any conflicts in

the evidence presented.”            Beidler, 110 F.3d at 1067 (internal

quotation      marks     and    citation       omitted).             “Reversal         for

insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.”              Id. (internal quotation marks

and citation omitted).

            In order to prove that Rangel conspired to possess

with     intent     to   distribute     and        distribute        marijuana,        the

Government needed to show (1) an agreement between two or more

persons, (2) that Rangel knew of the agreement, and (3) that

Rangel knowingly and voluntarily joined the conspiracy.                           United

States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc)

(citations     omitted).       However,       “a    conspiracy       may    be    proved

wholly    by      circumstantial     evidence,”        and     therefore         may    be

inferred from the circumstances presented at trial.                        Id. at 858.

To     establish     possession      with     intent      to        distribute,        the

Government had to prove that Rangel (1) knowingly, (2) possessed

the marijuana, (3) with the intent to distribute it.                             Id. at

873.     Possession      can   be   actual    or     constructive      and,      “[l]ike

conspiracy,       [c]onstructive     possession        may     be    established        by

either    circumstantial       or    direct        evidence.”         Id.    (internal

quotation marks omitted).



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            Finally,      to      prove    that        a        person     distributed        a

controlled substance, “the prosecution is obliged to prove that

(1) [the] defendant knowingly or intentionally distributed the

controlled substance alleged in the indictment, and (2) at the

time of such distribution the defendant knew that the substance

distributed was a controlled substance under the law.”                                   United

States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005) (internal

quotation     marks    and     citation    omitted).               We    have      thoroughly

reviewed the record and conclude that the Government presented

sufficient     evidence      of    Rangel’s       guilt          of     the    offenses     of

conviction.

            Rangel next argues that the district court erred by

allowing a witness to testify to alleged hearsay statements of a

confidential    informant,        in   violation           of    his     right     under    the

Confrontation Clause of the Sixth Amendment.                             As Rangel failed

to object to this testimony at trial, this issue is reviewed for

plain error.          See Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 731-32 (1993).                         To meet this standard,

Rangel must demonstrate that there was error, that was plain,

and that affected his substantial rights.                         Id.      Moreover, even

if   Rangel    demonstrates        plain       error       occurred,          we   will    not

exercise    discretion       to   correct      the     error          “unless      the    error

seriously affect[s] the fairness, integrity or public reputation



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of judicial proceedings.”            Id. (internal quotation marks and

citation omitted).

            “The Sixth Amendment to the United States Constitution

. . . provides that [i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against him.”       Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527,

2531   (2009)     (internal   quotation      marks       and    citation       omitted).

The    Confrontation     Clause    “guarantees       a    defendant’s          right    to

confront those who bear testimony against him,” and, therefore,

a witness’ testimony is “inadmissible unless the witness appears

at trial or, if the witness is unavailable, the defendant had a

prior opportunity for cross-examination.”                  Id. (quoting Crawford

v. Washington, 541 U.S. 36, 51, 54 (2004)) (internal quotation

marks omitted).      However, “the [Confrontation] Clause . . . does

not bar the use of testimonial statements for purposes other

than establishing the truth of the matter asserted.”                           Crawford,

541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409,

414    (1985)).     We   conclude    that    the     district        court      did    not

plainly err in allowing the testimony regarding the confidential

informant’s statements because the statements were not offered

to prove the truth of the matters asserted.

            Accordingly, we affirm the judgment of the district

court.      We    also   deny     Rangel’s    motion           to   file   a    pro    se

supplemental brief.       We dispense with oral argument because the

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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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