                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4272


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

JESSE MORALES,

                 Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.   Frederick P. Stamp,
Jr., Senior District Judge. (1:06-cr-00068-FPS-JSK-3)


Submitted:   September 30, 2010            Decided:   October 15, 2010


Before GREGORY, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Roger D. Curry, CURRY AMOS & ASSOCIATES, LC, Fairmont, West
Virginia, for Appellant. Betsy C. Jividen, Acting United States
Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Jesse Morales was charged — along with several other

individuals       —    in     a    seven-count            superseding        indictment    with

various drug offenses relating to a methamphetamine distribution

scheme stretching from Phoenix, Arizona to West Virginia.                                  Count

One   charged     Morales          with    conspiracy            to   distribute    more   than

fifty grams of methamphetamine in violation of 21 U.S.C. §                                  846

(2006); Count Two charged Morales with conspiracy to travel in

interstate      commerce           in     aid    of       racketeering       enterprise,      in

violation of 18 U.S.C. § 371 (2006); Count Three charged Morales

with conspiracy to commit money laundering, in violation of 18

U.S.C. § 1956(h) (2006).                  After a jury convicted Morales on all

three counts, he was sentenced to 360 months' imprisonment.                                  On

appeal, Morales challenges the sufficiency of the evidence used

to convict him.              He also argues that the jury’s verdicts were

inconsistent          and    his        sentence         was     unreasonable.       For    the

following reasons, we affirm.

             Morales          first        argues              that    the    evidence      was

insufficient to support a conviction.                            “A defendant challenging

the sufficiency of the evidence faces a heavy burden,” United

States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007), and a

jury’s verdict “must be upheld on appeal if there is substantial

evidence     in        the     record           to       support      it,”    id.    at    244.

“[S]ubstantial evidence” is “evidence that a reasonable finder

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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).    This court “consider[s] circumstantial as well as direct

evidence,     and     allow[s]       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), and assumes that the fact finder resolved all

contradictions       in    the     testimony        in   favor     of   the     Government.

United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008).

            Sufficient        evidence          supports       Morales’s        conviction.

The   Government      presented       extensive          testimony      from     the       other

members of the drug conspiracy — most notably the ringleader

James    Snyder,     and     the   driver,          Wayne    Prinkey    —     all    of     whom

testified to Morales’s extensive involvement as Snyder’s primary

supplier.     The Government also corroborated portions of Snyder’s

testimony     with        physical     evidence          and      testimony         from    law

enforcement        recounting       two     occasions        on     which     Morales        was

stopped     with     large    sums        of    cash.          Morales’s      argument        is

essentially that his co-conspirators were unreliable witnesses,

but that is an argument he was free to make — and did make — to

the jury.

            Morales         next      argues          that        the    jury        returned

inconsistent        verdicts       when        it    found      him     guilty       on      the

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substantive drug distribution count but then declined to order

any forfeiture.          Under 21 U.S.C. § 853(d) (2006), the Government

is entitled to a rebuttable presumption of forfeiture upon a

guilty verdict for a drug offense and only has to prove the

forfeiture by preponderance of the evidence.                           In this case, two

minutes after deliberating on the forfeiture, the jury sent a

question     to    the    district     court:           “The    jury    requests   further

explanation of the verdict, the purpose and outcome of a ‘yes’

or a ‘no’ vote.                What is the purpose of this forfeiture in

layman’s terms?          Thank you.”      The district court decided not to

supplement its initial instructions and, ten minutes later, the

jury returned a verdict declining to order a forfeiture.

              “[I]t      has    long   been    settled         that    inconsistent   jury

verdicts do not call into question the validity or legitimacy of

the resulting guilty verdicts.”                    United States v. Green, 599

F.3d 360, 369 (4th Cir. 2010), petitions for cert. filed, ___

U.S.L.W. ___ (U.S. July 10, Aug. 2, 2010) (Nos. 10-5288, 10-

5735).       See also United States v. Powell, 469 U.S. 57, 64-65

(1984); Dunn v. United States, 284 U.S. 390, 393-94 (1932).                           One

reason behind this rule is that although inconsistent verdicts

“present a situation where ‘error,’ in the sense that the jury

has not followed the court’s instructions, most certainly has

occurred, . . . it is unclear whose ox has been gored.”                            Powell,

469   U.S.    at   65.         Here,   given      the    jury’s       question   regarding

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forfeiture and the overwhelming evidence of guilt, it is quite

likely     that     the      jury    believed          Morales        was       guilty       on     the

forfeiture     counts         but    did        not    want   to      impose          any    further

hardship upon him.

            Finally, Morales challenges the reasonableness of his

sentence.         In   reviewing          any    sentence,       “whether            inside,       just

outside, or significantly outside the Guidelines range,” this

Court     applies      a     “deferential             abuse-of-discretion               standard.”

Gall v. United States, 552 U.S. 38, 41 (2007).                                   We must first

“ensure     that       the     district          court    committed             no     significant

procedural error.”             Id. at 51.             “If, and only if, we find the

sentence      procedurally            reasonable           can        we        ‘consider           the

substantive       reasonableness           of     the    sentence          imposed          under    an

abuse-of-discretion standard.’”                       United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).

            Procedural         errors       include       “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

clearly erroneous facts, or failing to adequately explain the

chosen sentence — including an explanation for any deviation

from the Guidelines range.”                 Gall, 552 U.S. at 51.

            Morales          contends      that,       although       the       district          court

correctly     determined            his     Guidelines        range,            it     failed        to

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recognize      the        unwarranted        disparity        between     his       sentence   and

those of the other conspirators.                         Most notably, Morales points

out that Snyder received a sentence of 160 months' imprisonment

and Prinkey was never charged by federal authorities.                                    Section

3553(a)(6) provides that the district court should take into

consideration             “the        need    to        avoid      unwarranted          sentence

disparities among defendants with similar records who have been

found guilty of similar conduct.”                        The district court considered

Morales’s argument in this case and rejected it, concluding that

Morales’s situation was distinct from Snyder’s and Prinkey’s.

               Morales’s         sentence          is     not     unreasonable          because,

although       his    sentence         was    higher       than    those       of    Snyder    and

Prinkey, it was not an unwarranted disparity.                                   First, Snyder

pleaded guilty and did not testify falsely at trial as Morales

did.     Those choices by Morales resulted in a five-level increase

in his offense level vis-à-vis that of Snyder.                                      In addition,

Morales       had    a     higher       criminal         history       score    than     Snyder.

Regarding      Prinkey,          at    the    time      the     federal    prosecution         was

commencing,         he     was   already       in       prison    in    Florida       serving   a

twenty-five         year     sentence        for    second-degree         murder.        Prinkey

also     was        the     person       responsible             for    jump-starting          the

investigation by offering his cooperation to authorities after

eleven pounds of methamphetamine was discovered in his vehicle

during    a    car       stop    in    Oklahoma.          In     sentencing         Morales,   the

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district court expressly recognized its duty under § 3553(a)(6)

and properly rejected Morales’s argument.              Morales’s sentence of

360 months' imprisonment was not unreasonable.

            For   the     foregoing    reasons,    we     affirm      Morales’s

conviction 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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