                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4337



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ERIC ANTHONY WIMBUSH, a/k/a E from DC,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-02-37)


Submitted:   September 20, 2006           Decided:   October 27, 2006


Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant.   Matthew Theodore
Martens, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           A jury convicted Eric Anthony Wimbush of conspiracy to

possess with intent to distribute fifty grams or more of cocaine

base, in violation of 21 U.S.C. § 846 (2000).             Wimbush was

sentenced to 360 months in prison.     He now appeals his conviction

and sentence.   His attorney has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), raising three claims but

stating that there are no meritorious grounds for appeal.     Wimbush

has also filed pro se supplemental briefs.    We affirm.

           Wimbush first claims that the district court erred when

it denied his Fed. R. Crim. P. 29 motion for judgment of acquittal.

We review de novo the denial of a Rule 29 motion.   United States v.

Uzenski, 434 F.3d 690, 700 (4th Cir. 2006).    Further:

           In assessing the sufficiency of evidence, we must
      determine whether the jury verdict is sustained by
      substantial evidence, taking the view most favorable to
      the Government. . . . This inquiry rests on whether any
      rational trier of fact could have found the essential
      elements of the crime beyond a reasonable doubt. . . .
      Credibility determinations fall within the sole province
      of the jury, to the extent that we assume the jury
      resolved all contradictions in the testimony in favor of
      the government.

Id.   (internal citations and quotation marks omitted).

           The essential elements of the charged conspiracy are:

(1) the existence of an agreement between two or more persons to

distribute fifty grams or more of cocaine base; (2) the defendant’s

knowledge of the conspiracy; and (3) the defendant’s knowingly and

voluntarily joining the conspiracy.    See United States v. Burgos,

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94 F.3d 849, 857 (4th Cir. 1996) (en banc).   Because “the focus of

a conspiracy charge is the agreement to violate the law, not

whether the conspirators have worked out the details of their

confederated criminal undertakings,” the government need not prove

that a defendant knew all the details of the conspiracy.    United

States v. Mills, 995 F.2d 480, 484 (4th Cir. 1993); see also

Burgos, 94 F.3d at 858.    Moreover, “[k]nowledge and participation

in the conspiracy may be proved by circumstantial evidence.”

United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir. 1987).

          The evidence presented at trial established that John

Romero, a large-scale distributor of cocaine base in the Ridgeview

area of Hickory, North Carolina, distributed significant quantities

of the drug to Wimbush and other mid-level dealers, including Kevin

Linder and Darren Izard.    Wimbush and these mid-level dealers, in

turn, distributed quantities of cocaine to lower-level dealers.

Wimbush and others at his level did not consider each other to be

competitors; rather, they maintained a cordial relationship and

routinely obtained supplies of cocaine base from one another when

Romero and other distributors were unable to provide the needed

quantities.   For instance, Damien Liles, another drug dealer,

testified that he purchased approximately thirty ounces of cocaine

base from Wimbush between 1998 and 2000, buying between one and two

ounces at a time. Wimbush, in turn, purchased approximately twenty




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ounces of cocaine from Liles during this time.           We conclude that

the evidence was sufficient to sustain the conspiracy conviction.1

           Next, Wimbush contends that the district court erred when

it granted the Government’s motion in limine to exclude evidence

that one of his coconspirators had been acquitted of the conspiracy

charge.   However, the acquittal of a non-testifying coconspirator

is not generally admissible at trial. United States v. Sanders, 95

F.3d 449, 454 (6th Cir. 1996).       The district court did not abuse

its   discretion   in   refusing   evidence   of   the   acquittal   to   be

presented.




      1
      In his pro se briefs, Wimbush contends that the Government
failed to establish that the conspiracy dealt in cocaine base, as
opposed to powder cocaine. The overwhelming evidence was that the
conspirators trafficked in cocaine base.

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                Finally, Wimbush challenges his 360-month sentence.2        At

sentencing, the district court concluded, based on a preponderance

of the evidence, that Wimbush was responsible for 700 grams of

cocaine base.       The court accordingly assigned a base offense level

of 36. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(2) (2004).

Further, the court found that a preponderance of the evidence

supported a two-level enhancement for possession of a firearm, see

USSG       §   2D1.1(b)(1),   and   a   two-level   increase   for   Wimbush’s

aggravated role in the offense, see USSG § 3B1.1(c).                 Wimbush’s

total offense level was 40, and his criminal history category was

III, for a guideline range of 360 months to life.              In sentencing

Wimbush, the court took note of this advisory guideline range and




       2
      Wimbush raises two other claims in his pro se brief. First,
he asserts that defense counsel had a conflict of interest because
he was under consideration for elevation to the bench. We note
that nothing in the record shows that defense counsel in fact was
being considered for a judicial appointment. At any rate, Wimbush
does not demonstrate how this alleged conflict prejudiced his
defense; indeed, he only speculates that the conflict impacted
counsel’s performance.      This claim is essentially one of
ineffective assistance of counsel. Because ineffectiveness does
not conclusively appear on the face of the record, Wimbush should
raise the claim, if at all, in a motion filed pursuant to 28 U.S.C.
§ 2255 (2000). See United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999). Second, Wimbush contends that a gun and marijuana
were seized in violation of the Fourth Amendment and should not
have been admitted into evidence. We note that these items were
seized from his bedroom at the time of his arrest, which occurred
after issuance of the indictment in this case. Further, Wimbush
informed officers when he was arrested that the gun and marijuana
were in the room.      There was no Fourth Amendment violation.
Finally, even without this evidence, there was more than enough
evidence presented at trial to convict Wimbush.

                                        - 5 -
specifically mentioned several of the sentencing factors set forth

at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).

          After United States v. Booker, 543 U.S. 220 (2005), a

sentence must be “within the statutorily prescribed range and . . .

reasonable.”   United States v. Hughes, 401 F.3d 540, 546-47 (4th

Cir. 2005) (citations omitted).    “[A] sentence within the properly

calculated Guidelines range . . . is presumptively reasonable.”

United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied,

126 S. Ct. 2309 (2006).

          Here, the 360-month sentence falls within the applicable

statutory range of ten years to life in prison.       See 21 U.S.C.

§ 841(b)(1)(A) (2000).    Moreover, the advisory guideline range was

correctly calculated. We note that the district court’s use of the

preponderance of the evidence standard in calculating that range

was appropriate and not violative of the Sixth Amendment.       See

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005); see also

United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005).

Furthermore, the trial testimony supports the court’s findings that

Wimbush was responsible for at least 700 grams of cocaine base,

possessed a firearm in furtherance of the conspiracy, and played an

aggravating role in the offense, and the court did not clearly err

in making these various findings.    See United States v. Lamarr, 75

F.3d 964, 972 (4th Cir. 1996).




                                 - 6 -
          In accordance with Anders, we have reviewed the entire

record   for   any   meritorious    issues   and    have   found   none.

Accordingly, we affirm.   This court requires counsel to inform his

client, in writing, of his right to petition the Supreme Court of

the United States for further review.     If the client requests that

a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move this court for leave to

withdraw from representation.      Counsel’s motion must state that a

copy of the motion was served on the client.       We dispense with oral

argument because the facts and legal contentions are adequately set

forth in the materials before the court and argument would not aid

the decisional process.

                                                               AFFIRMED




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