                                     UNPUBLISHED

                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT


                                       No. 19-4330


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JOHN HENRY JOHNSON,

                     Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at Florence.
Bruce H. Hendricks, District Judge. (4:17-cr-00108-BHH-26)


Submitted: February 28, 2020                                       Decided: April 20, 2020


Before KEENAN and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


William Michael Duncan, AUSTIN & ROGERS, PA, Columbia, South Carolina, for
Appellant. Sherri A. Lydon, United States Attorney, Andrew B. Moorman, Sr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Following a jury trial, John Henry Johnson was convicted of conspiracy to possess

with the intent to distribute and to distribute heroin, cocaine, fentanyl, and marijuana, in

violation of 21 U.S.C. § 846 (2018), and attempted distribution of heroin, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (2018). He appeals his convictions and 230-month

sentence, arguing that there was insufficient evidence presented at trial to support his

convictions and that his sentence is unreasonable because it is greater than necessary to

accomplish the sentencing goals of 18 U.S.C. § 3553(a) (2018). We affirm.

       “A defendant who brings a sufficiency challenge bears a heavy burden, as appellate

reversal on grounds of insufficient evidence is confined to cases where the prosecution’s

failure is clear.” United States v. Savage, 885 F.3d 212, 219 (4th Cir.) (internal quotation

marks omitted), cert. denied, 139 S. Ct. 238 (2018). “A jury verdict will be sustained so

long as there is substantial evidence in the record to support it.” United States v. Small,

944 F.3d 490, 499 (4th Cir. 2019) (internal quotation marks omitted), petition for cert.

filed, No. 19-1102 (U.S. Mar. 5, 2020). 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.” Savage, 885 F.3d at 219 (internal quotation

marks omitted). “When evaluating the sufficiency of the evidence, we view the evidence

in the light most favorable to the government and ask whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Small,

944 F.3d at 499 (citations and internal quotation marks omitted).          In making this



                                             2
determination, we may not resolve conflicts in the evidence or evaluate witness credibility.

United States v. Dinkins, 691 F.3d 358, 387 (4th Cir. 2012).

       To establish guilt of conspiracy to distribute controlled substances, the government

must prove that (1) an agreement to possess the controlled substance with intent to

distribute existed between two or more individuals; (2) the defendant knew of the

conspiracy; and (3) the defendant knowingly and voluntarily joined the conspiracy. United

States v. Allen, 716 F.3d 98, 103 (4th Cir. 2013). “Because a conspiracy is by nature

clandestine and covert, there rarely is direct evidence of such an agreement.” United States

v. Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (internal quotation marks omitted). Thus,

“[a] conspiracy may be proved wholly by circumstantial evidence.” Allen, 716 F.3d at 103

(internal quotation marks omitted). “[O]ne may be a member of a conspiracy without

knowing its full scope, or all its members, and without taking part in the full range of its

activities or over the whole period of its existence.” Id. (internal quotation marks omitted).

“Therefore, once a conspiracy is proven, the evidence need only establish a slight

connection between any given defendant and the conspiracy to support conviction.” Id.

(internal quotation marks omitted).

       “A mere buyer-seller relationship is insufficient to support a conspiracy conviction.”

United States v. Howard, 773 F.3d 519, 525 (4th Cir. 2014). However, “evidence of

continuing relationships and repeated transactions can support the finding that there was a

conspiracy, especially when coupled with substantial quantities of drugs.” United States

v. Reid, 523 F.3d 310, 317 (4th Cir. 2008). “Additionally, evidence of a defendant buying



                                              3
or selling a substantial quantity of drugs over a short period of time is enough to raise an

inference of a distribution conspiracy.” Allen, 716 F.3d at 104.

       Here, viewing the evidence in the light most favorable to the government, there was

evidence that Johnson’s supplier delivered heroin to Johnson and others, both personally

and through a courier. The deliveries to Johnson occurred regularly, two to three times a

month for five months. At 7 to 14 grams per delivery, these transactions represented more

heroin than the “street dosage” quantities of 0.25 to 0.3 grams. Johnson sold the heroin to

his own customers and paid his supplier with the proceeds. On two occasions in early

2017, Johnson agreed to sell heroin to a confidential informant. We conclude that the

evidence is sufficient to support the jury’s verdict as to the conspiracy charge.

       “An attempt to commit a crime, which is recognized as a crime distinct from the

crime intended by the attempt, punishes conduct that puts in motion events that would,

from the defendant’s point of view, result in the commission of a crime but for some

intervening circumstance.” United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). To

convict a defendant of an attempt, the government must prove “beyond a reasonable doubt

(1) culpable intent to commit the crime charged and (2) a substantial step towards the

completion of the crime that strongly corroborates that intent.” United States v. Neal, 78

F.3d 901, 906 (4th Cir. 1996). A substantial step is more than mere preparation but less

than completion of the crime. Id.

       To convict a defendant in a sham delivery case, the government “must, of course,

prove the defendant’s subjective intent to purchase (or sell) actual narcotics beyond a

reasonable doubt.” United States v. Pennell, 737 F.2d 521, 525 (6th Cir. 1984) (holding

                                              4
that defendant could be convicted of attempt to possess controlled substance even though

substance he purchased from government agents was not real cocaine); see United States

v. Fletcher, 945 F.2d 725, 727–28 (4th Cir. 1991) (affirming conviction for attempted

distribution of PCP where defendants intended to distribute PCP but actually distributed a

noncontrolled substance). “[T]he objective acts performed, without any reliance on the

accompanying mens rea, [must] mark the defendant’s conduct as criminal in nature. The

acts should be unique rather than so commonplace that they are engaged in by persons not

in violation of the law.” Pennell, 737 F.2d at 525. “[T]he defendant’s objective conduct,

taken as a whole, must unequivocally corroborate the required subjective intent to purchase

or sell actual narcotics.” Id.

       Here, viewing the evidence in the light most favorable to the government, on two

occasions a confidential informant asked Johnson to sell him heroin, and Johnson agreed.

Johnson assured the informant that he was not selling him fake drugs. The substance

Johnson delivered to the informant was packaged in rectangular foil slips, which is how

heroin is typically packaged for sale on the street. And Johnson’s supplier and the

supplier’s courier testified that they regularly sold Johnson what they believed to be heroin.

We conclude that this evidence is sufficient to establish that Johnson’s subjective intent

was to sell heroin, despite the fact that the substance he distributed was actually fentanyl,

and we therefore affirm the jury’s verdict as to the attempted distribution convictions.

       Turning to Johnson’s sentence, we review criminal sentences for reasonableness

using “a deferential abuse-of-discretion standard.” United States v. Lynn, 912 F.3d 212,

216 (4th Cir.) (internal quotation marks omitted), cert. denied, 140 S. Ct. 86 (2019). This

                                              5
review requires consideration of both the procedural and substantive reasonableness of the

sentence. Id. In determining procedural reasonableness, we consider whether the district

court properly calculated the defendant’s advisory Sentencing Guidelines range, gave the

parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C.

§ 3553(a) sentencing factors, and sufficiently explained the sentence. Gall v. United States,

552 U.S. 38, 49-51 (2007). Only after determining that the sentence is procedurally

reasonable do we consider the substantive reasonableness of the sentence, “tak[ing] into

account the totality of the circumstances.” Id. at 51; United States v. Provance, 944 F.3d

213, 218 (4th Cir. 2019). “Any sentence that is within or below a properly calculated

Guidelines range is presumptively [substantively] reasonable,” United States v. White, 810

F.3d 212, 230 (4th Cir. 2016) (internal quotation marks omitted), and Johnson bears the

burden of rebutting the presumption “by showing that the sentence is unreasonable when

measured against the 18 U.S.C. § 3553(a) factors,” United States v. Louthian, 756 F.3d

295, 306 (4th Cir. 2014).

       At sentencing, the district court considered Johnson’s arguments that his history and

personal characteristics warranted a sentence far below the Sentencing Guidelines range

but found that a sentence only moderately below the Guidelines range was appropriate. In

reaching this conclusion, the court relied heavily on Johnson’s extensive criminal history,

which demonstrated that he lacked respect for the law and that he had not been deterred

either by his many previous sentences or by his advanced age. The district court also noted

the seriousness of the offense in that, although Johnson attempted to distribute heroin, he

actually distributed fentanyl, a deadly substance. Nevertheless, as an act of compassion,

                                             6
the court imposed a sentence that was 32 months below the applicable Guidelines range.

We conclude that Johnson has failed to rebut the presumption of reasonableness that we

afford his below-Guidelines sentence and that the district court did not abuse its discretion

in imposing Johnson’s sentence.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                                AFFIRMED




                                             7
