                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4490


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DARNELL BARNES, a/k/a Imani,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:10-cr-00074-RGD-DEM-1)


Submitted:   February 16, 2012            Decided:   February 28, 2012


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Bryan L. Saunders, Newport News, Virginia, for Appellant. Laura
Pellatiro Tayman, Assistant United States Attorney, Newport
News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A federal jury convicted Darnell Barnes of conspiracy

to distribute and possess with intent to distribute heroin and

cocaine, in violation of 21 U.S.C. § 846 (2006), and two counts

of   possession     with    intent        to    distribute         and    distribution      of

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

district    court    sentenced        Barnes        to    188     months’      imprisonment.

Barnes’ attorney has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), testing the sufficiency of the

evidence supporting Barnes’ convictions, questioning whether the

Government’s comment during closing argument regarding Barnes’

co-defendant’s failure to testify deprived Barnes of his right

to a fair trial, and challenging the reasonableness of Barnes’

sentence.         Counsel     states,          however,      that    he       has   found   no

meritorious       grounds     for    appeal.             Barnes    filed      three   pro    se

briefs,    expanding    upon        the    arguments        raised       by   counsel.      We

affirm.

            Barnes’ challenge to the sufficiency of the evidence

attacks     the     credibility           of    the      witnesses.            However,     in

evaluating the sufficiency of evidence, we will not review “the

credibility of witnesses, but assume that the jury resolved all

contradictions in the testimony in favor of the Government.”

United States v. Roe, 606 F.3d 180, 186 (4th Cir.), cert denied,

131 S. Ct. 617 (2010).               Moreover, taking the evidence in the

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light most favorable to the Government, see United States v. Abu

Ali, 528 F.3d 210, 244 (4th Cir. 2008) (providing standard), we

conclude substantial evidence supports the verdict.                           See United

States    v.     Yearwood,        518     F.3d     220,    225-26    (4th    Cir.      2008)

(conspiracy); United States v. Brower, 336 F.3d 274, 276 (4th

Cir. 2003) (distribution).

              Next, Barnes argues the Government’s statement during

closing      argument       about    his    co-defendant’s        failure    to     testify

deprived him of his right to a fair trial.                        After reviewing the

transcript and examining the prosecutor’s comment in context, we

conclude without difficulty that the comment does not warrant

reversal       because       it     was    a     factual     clarification        of    the

prosecutor’s prior misstatement regarding Barnes’ co-defendant.

See United States v. Jones, 471 F.3d 535, 542 (4th Cir. 2006).

Moreover, even if improper, we conclude that the comment did not

affect     Barnes’      substantial         rights.         See     United    States     v.

Hasting,       461    U.S.    499,      507-10     (1983)     (providing      standard);

Jones, 471 F.3d at 542 n.2.

              Last,     Barnes       questions       the    reasonableness        of    his

sentence.       Because Barnes did not request a sentence different

than   the     one    ultimately        imposed,     we    review   his     sentence    for

plain error.          See United States v. Lynn, 592 F.3d 572, 578-79

(4th Cir. 2010); see United States v. Massenburg, 564 F.3d 337,

342-43     (4th      Cir.     2009)       (discussing      plain     error    standard).

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First, we examine the sentence for significant procedural error,

including such errors “as failing to calculate (or improperly

calculating) the Guidelines range, . . . 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.”                Gall v. United States, 552 U.S.

38, 51 (2007).             If there are no procedural errors, we then

consider the substantive reasonableness of the sentence, “taking

into account the totality of the circumstances.”                       United States

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (internal quotation

marks omitted).

              Here,    the       district    court    followed       the        necessary

procedural steps in sentencing Barnes.                    Moreover, Barnes has not

rebutted the presumption of reasonableness accorded his within-

Guidelines sentence on appeal.                  See United States v. Montes-

Pineda, 445 F.3d 375, 379 (4th Cir. 2006).                     Hence, we conclude

the sentence imposed by the district court is reasonable.

              In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We    therefore    affirm        the   district     court’s    judgment         and   deny

Barnes’ motion for default judgment.                  This court requires that

counsel inform Barnes, in writing, of the right to petition the

Supreme   Court       of   the    United    States   for     further    review.         If

Barnes requests that a petition be filed, but counsel believes

                                            4
that such a petition would be frivolous, then counsel may move

in   this   court   for       leave   to       withdraw      from    representation.

Counsel’s motion must state that a copy thereof was served on

Barnes.     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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