United States v. Viar

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4171

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROGER H. VIAR, SR.,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:03-cr-30073-nkm-13)

Argued: January 30, 2008 Decided: May 5, 2008

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Rhonda Lee Overstreet, LUMSDEN & OVERSTREET, Roanoke,
Virginia, for Appellant. William Frederick Gould, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: John L. Brownlee, United States Attorney, Roanoke,
Virginia, Jean B. Hudson, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Roger H. Viar, Sr. appeals from his convictions and sentence

for a methamphetamine conspiracy, in violation of 21 U.S.C. § 846

(Count One), and possession with intent to distribute

methamphetamine, in contravention of 21 U.S.C. § 841(a)(1) (Count

Two). At the conclusion of a trial conducted in the Western

District of Virginia in April 2005, a jury convicted Viar of both

offenses and made a forfeiture award to the Government. Viar

sought post-trial relief, contending that the evidence was

insufficient to justify the verdict and the forfeiture award. The

district court denied relief, ruling that Viar’s convictions were

adequately supported by the evidence, and also that the forfeiture

award was warranted. See United States v. Viar, No. 6:03-cr-30073

(W.D. Va. May 12, 2005) (the “Opinion”).1 In January 2006, Viar

was sentenced to 188 months of imprisonment. On appeal, Viar

contends that his convictions should be vacated because there was

insufficient evidence to support them, and that his sentence is

defective for multiple reasons. As explained below, we reject

Viar’s appellate contentions of error and affirm his convictions

and sentence.

1
The Opinion can be found at J.A. 475-81. (Citations to
“J.A. ” refer to the Joint Appendix filed by the parties in this
appeal.)

2
 I.

A.

On September 5, 2003, the initial indictment in this case (the

“First Indictment”) was returned by a grand jury in the Western

District of Virginia, charging eight defendants — but not Viar —

with, inter alia, a drug conspiracy to distribute 500 grams or more

of methamphetamine.2 Later in September 2003, the apparent ring-

leader of the conspiracy, James Davis, was arrested and began

cooperating with the authorities. He immediately provided them

with information about Viar. On March 1, 2004, he pleaded guilty

to the conspiracy offense alleged in Count One of the First

Indictment. Pursuant to his plea agreement with the Government,

Davis continued to cooperate, seeking a “substantial assistance”

reduction in his sentence.3

On April 26, 2004, Viar was apprehended by the Virginia State

Police while driving his Ford pick-up truck on a public highway in

Campbell County, Virginia.4 The officers were responding to

2
In discussing the controlled substance methamphetamine, we
mean a substance or mixture containing methamphetamine.
3
Four of Davis’s codefendants in the First Indictment,
Clayton Keyes, William Keyes, Joseph Keyes, and Denise Hamilton,
also pleaded guilty to the Count One conspiracy offense on March 1,
2004. A sixth defendant, Donald Owens, pleaded guilty to Count One
on July 1, 2004.
4
We recite the facts in the light most favorable to the
Government as the prevailing party at trial. See United States v.
Kelly, 510 F.3d 433, 435 (4th Cir. 2007).

3
information secured in the drug investigation, including a tip from

Viar’s wife, who had found illicit drugs in his truck. The

officers searched Viar’s vehicle and seized a plastic bag

containing 25.3 grams of methamphetamine from the glove box, as

well as over $26,000 in cash from a bag in the rear passenger

compartment. They also searched Viar’s person, finding $6187 in

cash, and a check made out to him for $857.31.

On July 7, 2004, the grand jury returned a superseding

indictment in this case (the “Superseding Indictment”), charging

Viar and seven additional codefendants, including two named in

Count One of the First Indictment who had not yet pleaded guilty

(Frank Padgett and Me’Chelle Baldwin), plus several drug suppliers

from California. The eight defendants named in the Superseding

Indictment were charged in the Count One conspiracy, as well as the

forfeiture allegation. Viar was separately charged in Count Two

with possession of methamphetamine with intent to distribute,

arising from the events of April 26, 2004.

The Count One conspiracy alleged in the Superseding Indictment

is materially and substantially the same as the Count One

conspiracy alleged in the First Indictment — the only distinctions

relate to the conspirators named and the date the conspiracy

4
commenced.5 The Superseding Indictment alleged, in pertinent part,

that

beginning sometime in or about 1996, and continuing
through the return date of this Superseding Indictment,
in the Western District of Virginia and elsewhere, the
defendants, FRANK P. PADGETT, III, MICHELLE [ME’CHELLE]
M. BALDWIN, aka “Maude,” DAVID M. BINGHAM, CURTIS L.
MORTON, Sr., ROCK A. ROSSER, aka “Rocky,” ROGER L.
WOODCOCK, ROGER H. VIAR, Sr., and DAVID M. COLINGER, aka
“Big O,” did knowingly and intentionally . . . conspire,
. . . and agree together, and with diverse other persons
known and unknown to the Grand Jury, to knowingly and
intentionally distribute and possess with intent to
distribute five hundred (500) grams or more of a mixture
or substance containing a detectable amount of
methamphetamine.

J.A. 13-14. In both indictments, the Count One conspiracy

allegedly occurred “in the Western District of Virginia and

elsewhere,” and involved, in addition to those named as defendant

conspirators, “diverse other persons known and unknown to the Grand

Jury.” Id.

After the Superseding Indictment was returned, an arrest

warrant was issued for Viar, and, on July 14, 2004, officers

proceeded to his home and placed him under arrest. Upon searching

Viar, the officers found a plastic bag containing a quarter to a

half ounce of methamphetamine, plus $2719 in cash. After obtaining

consent from Viar’s wife to search the residence and the vehicles

on the Viar property, the officers seized two bundles of cash from

the trunk of a Cadillac parked in front of the home — one valued

5
The First Indictment alleges that the conspiracy began in
1998, while the Superseding Indictment alleges it began in 1996.

5
at $7700, and the other at $24,120. They also seized three

tractor-trailer trucks belonging to Viar.

Defendants Padgett and Baldwin (named as conspirators in Count

One of both indictments) thereafter pleaded guilty to the Count One

conspiracy. Coconspirators Bingham, Morton, Woodcock, and Colinger

— each named for the first time in the Superseding Indictment —

also pleaded guilty to the Count One conspiracy. The two remaining

named conspirators in the case, Viar and Rosser, put the

prosecution to its proof and proceeded to trial.

B.

1.

Viar and Rosser’s jury trial began on April 5, 2005, in

Lynchburg. During the three-day trial, the prosecution presented

several witnesses, seeking to prove that Viar and Rosser had been

involved in the methamphetamine distribution conspiracy alleged in

Count One.6 Woodcock, one of the convicted conspirators, testified

that Rosser regularly moved multiple kilograms of methamphetamine

from California to Virginia, where he sold quantities of the

substance to Woodcock and convicted conspirator Davis (who then

distributed the methamphetamine in the Lynchburg area). Davis was

a key prosecution witness, and testified that, after a falling out

6
Rosser pleaded guilty to Count One on April 6, 2005, the
second day of trial, and was thereafter not involved in the
proceedings.

6
with Woodcock, he obtained methamphetamine from other California

sources, including convicted conspirator Bingham.

In 2003, Davis first met Viar and began obtaining quantities

of methamphetamine from him, while continuing to be supplied by

Bingham and others. Davis had several regular customers, including

convicted conspirator Baldwin, who would occasionally pick up

packages of methamphetamine for Davis. Davis maintained an

organization of several conspirators who purchased packages of

methamphetamine, then repackaged and sold the substance in smaller

quantities. Davis obtained ten to twelve ounces (280 to 336 grams)

of methamphetamine from Viar over the course of a few months in

2003. On one occasion, Jeremy Carroll, another prosecution

witness, saw Viar hand Davis a white package while Viar was sitting

in his pick-up truck. The package contained approximately two

ounces of methamphetamine, and Davis immediately sold part of it to

Joseph Keyes (a conspirator charged in the First Indictment).

Davis admitted being personally responsible for buying and selling

at least fifteen kilograms of methamphetamine.

The prosecution also called Jeffrey Roatenberry, a driver in

Viar’s logging business, who had obtained “eight-ball quantities”

(approximately 3.5 grams) of methamphetamine from Viar at least

once a week over a nine-month period in 2002 and 2003, for a total

of about 126 grams. Viar later sold Roatenberry “ounce” quantities

of methamphetamine, at least weekly, for a period of one-and-a-half

7
to two years, conservatively estimated at a total of 2016 grams.

Roatenberry personally used some of these drugs and sold the

balance to others. One of Viar’s drug sources was Eddie Evans, who

Roatenberry introduced to Viar (Roatenberry and Evans were never

charged in the Count One conspiracy). On one occasion, Roatenberry

obtained three ounces of methamphetamine from Evans and delivered

it to Viar. Roatenberry also assisted Viar in dividing large

quantities of methamphetamine into smaller quantities for resale

purposes. Viar contacted Evans at least once every other week, and

Viar told Roatenberry that he purchased methamphetamine from

sources other than Evans. Viar once asked Roatenberry to hold

$60,000 in cash for him and, on another occasion, told Roatenberry

about $100,000 in cash hidden in the trunk of his wife’s car.

James Mitchell and John Henry Preas — who were not charged in

the Count One conspiracy — also testified for the prosecution, and

admitted obtaining “half-ounce to ounce” quantities of

methamphetamine from Viar. Viar asked Mitchell to deliver

methamphetamine to Preas because it was easier for Preas to deal

with Mitchell. During this activity, Mitchell received

approximately eight ounces (224 grams) of methamphetamine from

Viar, and he used the substance to supply Preas and others.

Mitchell paid Viar $1200 an ounce up front but, when he lacked

sufficient funds, paid Viar after selling the methamphetamine.

Mitchell was involved in this arrangement with Viar for five or six

8
months in 2002 and 2003. According to Preas, Viar was a user as

well as a distributor of methamphetamine.

Viar’s wife, Ruby, presented some exculpatory evidence on

behalf of her husband. She explained that Viar had won $18,000 in

Atlantic City the weekend before he was arrested in April 2004.

She also said that Viar routinely kept a few thousand dollars with

him for his logging business. Viar called three witnesses and did

not testify on his own behalf.

2.

Viar made two motions for judgment of acquittal during the

trial — at the close of the prosecution’s case-in-chief and again

at the close of all the evidence — both of which were denied.7 On

7
In connection with Viar’s argument that the evidence failed
to show that he was involved in the overall conspiracy alleged in
Count One, the court instructed the jury on single conspiracy-
separate conspiracy principles, and on the question of whether
Count One failed to allege the conspiracy established by the
evidence. That instruction was, inter alia, in the following
terms:

In order to sustain its burden of proof on [Count One],
the government must show that the single conspiracy
alleged in Count One of the indictment existed. Proof of
separate or independent conspiracies is not sufficient.
. . . Even if the evidence in the case shows that a
defendant was a member of some conspiracy, but that this
conspiracy is not the single conspiracy charged in the
indictment, then you must acquit the defendant of this
charge.

Jury Instructions at 6-7, United States v. Viar, No. 6:03-cr-30073
(W.D. Va. May 12, 2005).

9
April 7, 2005, on completion of the initial phase of trial, the

jury returned a guilty verdict against Viar on the Count One

conspiracy and the Count Two substantive offense. On completing

the forfeiture phase, the jury returned its Special Verdict,

consisting of a $500,000 money judgment, plus the forfeiture of

$40,000 in cash and three large trucks. On April 13, 2005, Viar

again moved for judgment of acquittal, arguing that his conviction

on the Count One conspiracy was defective in two respects: (1) the

prosecution’s evidence was insufficient to show that he had

conspired to distribute 500 grams or more of methamphetamine, and

(2) even if shown to be a conspirator, the prosecution had failed

to prove that he was involved in the overall conspiracy alleged in

Count One. Viar also contended that his conviction on the Count

Two substantive offense, as well as the forfeiture verdict, lacked

sufficient supporting evidence.

By its Opinion of May 12, 2005, the district court denied

Viar’s request for post-trial relief. The court found sufficient

evidence — including the testimony of Davis (as corroborated by

Carroll) — to implicate Viar and establish his guilt on the Count

One conspiracy. See Opinion 3-4.8 As to Count Two, the court

8
In its Opinion, the district court explained its ruling on
Viar’s evidence contention on Count One, in part, as follows:

Six government witnesses testified as to Viar’s
distribution of methamphetamine and his involvement in
the conspiracy. This testimony established that

10
concluded that the methamphetamine seized from Viar on April 26,

2004, combined with the amount of cash he then possessed, permitted

the jury to infer his intent to distribute drugs. See id. at 4.

Finally, the court ruled that there was substantial evidence to

support the forfeiture award. See id. at 4-6.

C.

A presentence report (“PSR”) was then prepared, attributing

11.8 kilograms of methamphetamine to Viar. The PSR reached this

amount by converting the $500,000 forfeiture money judgment to a

drug quantity, at the rate of $1200 per ounce of methamphetamine.

Viar objected to the drug quantity recommended by the PSR,

asserting that the testimony of Roatenberry, Davis, and Mitchell

was inconsistent and unreliable, and arguing that no more than 538

grams of methamphetamine should be attributed to him.9 Viar also

Defendant was distributing methamphetamine to multiple
buyers. The government also presented evidence linking
James Davis and his suppliers in California to Virginia
residents, including Defendant Roger Viar. This evidence
included Davis’s testimony that he had purchased
methamphetamine from Defendant on multiple occasions.
Davis’s testimony was corroborated by the testimony of
Jeremy Carroll. Davis’s testimony provided the necessary
link connecting Defendant to the overall conspiracy.

Opinion 3.
9
During plea negotiations, Viar had offered to admit to 538
grams of methamphetamine, but the Government would agree to his
guilty plea on the Count One conspiracy only if he admitted to 15
kilograms.

11
objected to the PSR’s recommendation that he be denied an

adjustment for acceptance of responsibility. The PSR concluded

that, although Viar conceded during plea negotiations that he

purchased significant amounts of methamphetamine, he admitted

selling only small quantities to Baldwin, Mitchell, and Preas.

According to the PSR, because Roatenberry, Mitchell, Preas, and

Davis testified that they obtained larger quantities from Viar than

he was willing to acknowledge, Viar had falsified the extent of his

involvement in the Count One conspiracy.

The district court overruled Viar’s objections and adopted the

PSR’s Sentencing Guidelines calculations, resulting in a total

offense level of 36, a criminal history category of I, and an

advisory sentencing range of 188 to 235 months. Viar then argued

that he should be sentenced below the advisory range because he did

not know several of the conspirators; he had a legitimate, thriving

business; he had a drug problem; he had sold his logging business

to pay the forfeiture judgment (saving the Government the time and

expense of collection); he had paid the forfeiture judgment for the

entire conspiracy; and due to his age (sixty-two years old). The

court rejected Viar’s contentions, however, and sentenced him to

188 months in prison. In so doing, the court observed that it had

considered all the factors “it was supposed to consider,” including

the fact that Viar had not fully accepted responsibility. J.A.

12
516. Viar filed a timely notice of appeal, and we possess

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review de novo a district court’s denial of a motion for

judgment of acquittal. See United States v. Ryan-Webster, 353 F.3d

353, 359 (4th Cir. 2003). We are obliged to sustain a guilty

verdict that, viewing the evidence in the light most favorable to

the prosecution, is supported by “‘substantial evidence.’” United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)

(quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). We

have defined “substantial evidence” as “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.

The Supreme Court has recognized that the “courts of appeals

must review all sentences — [including those] inside . . . the

Guidelines range — under a deferential abuse-of-discretion

standard.” Gall v. United States, 128 S. Ct. 586, 589-90 (2007);

see also United States v. Osborne, 514 F.3d 377, 387 (4th Cir.

2008). “[A]ppellate review of sentencing decisions is limited to

determining whether they are reasonable.” Gall, 128 S. Ct. at 590

(internal quotation marks omitted). If the sentence imposed by a

13
district court falls within the correctly calculated Guidelines

range, we are entitled, on appellate review, to apply a presumption

of reasonableness. See Rita v. United States, 127 S. Ct. 2456,

2462 (2007); United States v. Go, 517 F.3d 216, 218 (4th Cir.

2008).

III.

With respect to his convictions, Viar challenges the

sufficiency of the evidence to sustain the verdict on the Count One

conspiracy offense as well as the Count Two substantive offense.

We assess in turn whether Viar was entitled to judgment of

acquittal on either of these charges.

A.

Viar first contends on appeal — as he did in the district

court — that there was insufficient evidence to convict him of

Count One. More specifically, he contends that the court erred in

denying his motion for judgment of acquittal on Count One because

the prosecution’s evidence “fail[ed] to prove that [he] was a

member of the conspiracy involving the California suppliers and

certain distributors in Virginia.” Br. of Appellant 14. Viar

asserts that the evidence established, at best, that he conspired

with individuals in Virginia who were not connected to the

conspiracy alleged in Count One.

14
 In order to prove that Viar was a conspirator in Count One, in

violation of § 846 of Title 21, the prosecution was obliged to

prove — as the jury was instructed — (1) that there was an

agreement between two or more persons to engage in conduct that

violated a federal drug law; (2) that Viar had knowledge of the

conspiracy; and (3) that he knowingly and voluntarily became part

of the conspiracy. Under the applicable principles, a criminal

conspiracy — a partnership in crime in which each member of the

conspiracy becomes the agent of every other member — can be proven

by either direct or circumstantial evidence, or both. See United

States v. Brown, 856 F.2d 710, 711 (4th Cir. 1988). And, it is

well-settled that “[o]nce a conspiracy has been proved, the

evidence need only establish a slight connection between any given

defendant and the conspiracy to support conviction.” United States

v. Strickland, 245 F.3d 368, 385 (4th Cir. 2001). In fact, it is

settled that a conspirator need not have knowledge of all of his

coconspirators, or the details of the conspiracy, and he may be

convicted of conspiracy upon having played only a minor role. See

id. (relying on United States v. Burgos, 94 F.3d 849, 861 (4th Cir.

1996) (en banc)).

Assessing the evidence in the light most favorable to the

Government, it was sufficient for a reasonable factfinder to

conclude that Viar was criminally liable for the conspiracy

alleged. In 2003, Viar distributed approximately 280 to 336 grams

15
of methamphetamine to Davis, who pleaded guilty to the Count One

conspiracy in the First Indictment. And, we have consistently held

that a buyer-seller relationship, “when combined with evidence of

a substantial quantity of drugs . . . ‘[supports] a reasonable

inference that the parties were coconspirators.’” United States v.

Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (quoting United States

v. Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993)); see also United

States v. Reid, No. 06-4826, 2008 WL 1734923, at *7 (4th Cir. April

16, 2008); Brown, 856 F.2d at 712 (recognizing that “[a] large

quantity of [drugs] . . . supports an inference or presumption that

appellant knew that he was a part of a venture which extend[ed]

beyond his individual participation” (internal quotation marks

omitted)). Thus, the quantity of drugs Davis purchased from Viar

in 2003 sufficiently supports the inference that Viar and Davis

conspired to distribute methamphetamine.

The trial evidence also showed that Davis was a ringleader of

the Count One conspiracy in the Western District of Virginia. He

purchased methamphetamine from several sources, including Woodcock,

Bingham, and Viar. And, although Davis’s drug sources changed from

time to time, he had several regular customers, including

conspirator Baldwin, who occasionally picked up packages of

methamphetamine for Davis. Davis also maintained an organization

of several conspirators who purchased packages of methamphetamine,

then repackaged and sold the substance in smaller quantities. In

16
fact, Davis admitted involvement with over fifteen kilograms of

methamphetamine.

As the district court recognized, Davis “provided the

necessary link connecting [Viar] to the overall conspiracy.”

Opinion 3. Viar asserts, however, that even though he sold Davis

several ounces of methamphetamine, he (Viar) had nothing to do with

Davis’s other drug sources, and that his conviction on Count One is

thus undermined. Contrary to Viar’s assertions, a conspirator, as

noted above, need not have knowledge of all of his coconspirators,

or the details of the conspiracy, and he may be convicted of

conspiracy upon having played only a minor role. Strickland, 245

F.3d at 385.10 Indeed, we have explained that

it is not necessary to proof of a conspiracy that it have
a discrete, identifiable organizational structure; the
requisite agreement to act in concert need not result in
any such formal structure, indeed frequently, in
contemporary drug conspiracies, [it] contemplates and
results in only a loosely-knit association of members
linked only by their mutual interest in sustaining the
overall enterprise of catering to the . . . consumption
market.

United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).

Viar and the other conspirators were plainly shown to have the

same goal with respect to the same product in the same area —

10
As the court instructed the jury, “the government need not
prove that an alleged coconspirator know each of the other alleged
members of the conspiracy. Nor need it establish that an alleged
coconspirator was aware of each of the transactions alleged in the
indictment.” Jury Instructions at 7, United States v. Viar, No.
6:03-cr-30073 (W.D. Va. May 12, 2005).

17
distribution of methamphetamine in the Western District of

Virginia. In resolving a single versus separate conspiracy issue,

we have explained that a single conspiracy can exist if the

evidence shows that the conspiracy proven, inter alia, “‘had the

same objective, . . . the same goal, the same nature, the same

geographic spread, the same results, and the same product.’”

United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995)

(quoting United States v. Crockett, 813 F.2d 1310, 1316-17 (4th

Cir. 1987)). On this issue, the jury was carefully instructed that

[i]n order to sustain its burden of proof on [Count One],
the Government must show that the single conspiracy
alleged in Count One of the indictment existed. Proof of
separate or independent conspiracies is not sufficient.
. . . Even if the evidence in the case shows that a
defendant was a member of some conspiracy, but that this
conspiracy is not the single conspiracy charged in the
indictment, then you must acquit the defendant of this
charge.

Jury Instructions at 6-7, United States v. Viar, No. 6:03-cr-30073

(W.D. Va. May 12, 2005). Significantly, no issue has been made or

preserved on the propriety of this aspect of the instructions. And

the jury, by its verdict, concluded beyond a reasonable doubt that

Viar was guilty of the Count One conspiracy. In assessing the

evidence, we are unable to disagree with the district court’s

conclusion that there was sufficient evidence to support the

conspiracy verdict. We thus reject Viar’s challenge to his Count

One conviction.

18
 B.

Viar also asserts that there was insufficient evidence to

convict him of the Count Two offense of possession of

methamphetamine with intent to distribute. In that regard, the

Superseding Indictment alleged that “on or about April 26, 2004, in

the Western Judicial District of Virginia, the defendant, ROGER H.

VIAR, Sr., . . . did knowingly and intentionally possess with

intent to distribute a mixture or substance containing

[methamphetamine].” J.A. 15. In order to prove the Count Two

offense, the prosecution was required to prove that Viar (1)

possessed methamphetamine, (2) had knowledge of this possession,

and (3) intended to distribute it. See Burgos, 94 F.3d at 873.

The evidence in support of Count Two was that, on April 26,

2004, Viar’s pick-up truck was stopped by law officers and, at the

time, he possessed slightly less than an ounce of methamphetamine,

plus $6187 in cash and a check made out to him for $857.31. A

search of his pick-up resulted in the seizure of over $26,000 in

cash from a bag in a rear passenger compartment. Contrary to

Viar’s contentions, his intent to distribute methamphetamine could

readily be inferred by the jury from these events. See United

States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005) (concluding

that jury can infer intent to distribute from factors such as drug

quantity, packaging, concealment, and cash seized); United States

19
v. Bell, 954 F.2d 232, 235 (4th Cir. 1992), overruled on other

grounds by Burgos, 94 F.3d at 860; United States v. Fisher, 912

F.2d 728, 730 (4th Cir. 1990).

Viewed in the light most favorable to the Government, this

evidence was sufficient for a reasonable jury to conclude that Viar

possessed methamphetamine with the intent to distribute. Viar

asserts, however, that he offered “uncontroverted evidence . . . to

refute the government’s circumstantial proof of the intent to

distribute.” Br. of Appellant 18.11 Although Viar presented

alternative explanations for the methamphetamine and cash seized

from him, “[w]e may not weigh the evidence . . . . [That]

function[] [is] reserved for the jury, and ‘if the evidence

supports different, reasonable interpretations, the jury decides

which interpretation to believe.’” United States v. Wilson, 118

F.3d 228, 234 (4th Cir. 1997) (quoting United States v. Singh, 54

F.3d 1182, 1186 (4th Cir. 1995)). In sum, because a reasonable

factfinder could conclude that Viar possessed methamphetamine with

the intent to distribute, we also affirm his conviction on Count

Two.

11
In support of this contention, Viar relies on the testimony
of his wife, Ruby, plus Preas and Woodcock. Ruby Viar testified
that her husband won $18,000 in Atlantic City the weekend before he
was pulled over, and that he routinely carried a few thousand
dollars with him for business purposes. Preas testified that Viar
was a methamphetamine user, and Woodcock testified that a heavy
user of methamphetamine could use two to two-and-one-half ounces in
a month.

20
 IV.

In challenging his sentence, Viar contends that the district

court erred in adopting the drug calculation recommended by the PSR

and in denying him an adjustment to his offense level based on his

acceptance of responsibility. He also maintains that his sentence

was unreasonable. We assess these contentions in turn.

A.

First, Viar contends that the district court erroneously

calculated the drug quantity attributable to him for sentencing

purposes. A trial court’s determination of drug quantity is a

factual finding that we review for clear error. See United States

v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). For sentencing

purposes, the Government is required to prove drug quantity by a

preponderance of the evidence. Id. As a general proposition, a

conspirator is liable for “all reasonably foreseeable acts” of his

coconspirators that were carried out in furtherance of the

conspiracy. See USSG § 1B1.3(a)(1)(B) (2004).

Before returning its Special Verdict on the forfeiture issue,

the jury was instructed to hold Viar responsible only for the

amount that was reasonably foreseeable to him. The forfeiture

verdict found the underlying conspiracy to involve $500,000 in

gross proceeds, resulting from violations of 21 U.S.C. §§ 846 and

841(a)(1), and also found that drug quantity to be reasonably

21
foreseeable to Viar. Relying thereon, the PSR concluded that 11.8

kilograms of methamphetamine were attributable to Viar for

sentencing purposes — premised on the conversion of the $500,000

forfeiture finding to a corresponding quantity of methamphetamine.12

We have recognized that a sentencing court is entitled to

utilize the “drug equivalent” of drug-related cash in calculating

drug quantity for sentencing purposes. See United States v. Hicks,

948 F.2d 877, 883 (4th Cir. 1991). Although the quantity

calculation made in the PSR was an estimate, “[a] district court’s

finding . . . is not erroneous if it is based on evidence

possessing sufficient indicia of reliability to support its

probable accuracy.” United States v. Uwaeme, 975 F.2d 1016, 1021

(4th Cir. 1992). In the absence of an affirmative showing that the

facts related in the PSR are incorrect, the sentencing court is

entitled to adopt its findings. See United States v. Terry, 916

F.2d 157, 162 (4th Cir. 1990). As a result, the district court did

not clearly err in attributing 11.8 kilograms of methamphetamine to

Viar for sentencing purposes.13

12
The PSR used $1200 as an estimated price for an ounce of
methamphetamine because it was an average of the prices given by
Viar and the various trial witnesses.
13
Viar makes several assertions that appear to challenge the
sufficiency of the evidence relating to the $500,000 special
verdict on forfeiture, but couches them in his contentions
regarding drug quantity. Because Viar does not specify that he is
challenging the sufficiency of the evidence supporting the special
verdict, we need not further address the propriety of the
forfeiture award.

22
 B.

Next, Viar contends that the district court erred in failing

to grant his request for an acceptance of responsibility

adjustment. Viar asserts, in support of this proposition, that he

had admitted his culpability prior to trial and only put the

prosecution to its proof because of a disagreement with the

prosecution on drug quantity. The court decided, however, that

Viar was not entitled to such an adjustment, because he had not

admitted the extent of the drug activity for which he was found

culpable by the jury. We review a district court’s decision to

deny an adjustment for acceptance of responsibility for clear

error. See United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.

1999).

In order to receive an adjustment for acceptance of

responsibility, a defendant must, pursuant to section 3E1.1 of the

Guidelines, “prove by a preponderance of the evidence that he has

clearly recognized and affirmatively accepted personal

responsibility for his criminal conduct.” United States v. May,

359 F.3d 683, 693 (4th Cir. 2004) (citing United States v. Nale,

101 F.3d 1000, 1005 (4th Cir. 1996)). As a general proposition, an

adjustment for acceptance of responsibility “is not intended to

apply to a defendant who puts the government to its burden of proof

at trial.” USSG § 3E1.1 cmt. n.2 (2004). Nevertheless, a

23
defendant is entitled to go to trial and yet, in certain

circumstances, still receive such an adjustment. For example, an

adjustment might be warranted if a defendant proceeded to trial “to

assert and preserve issues that do not relate to factual guilt.”

Id. It is well-settled, however, that “a defendant who falsely

denies, or frivolously contests, relevant conduct that the court

determines to be true has acted in a manner inconsistent with

acceptance of responsibility.” Id. § 3E1.1 cmt. n.1(a).

This record reveals that, although Viar acknowledged being a

drug distributor and being personally involved with 538 grams of

methamphetamine, he did not accept responsibility before trial for

the quantity attributable to him. The evidence established, as the

district court recognized, that Viar was personally involved in

well over 538 grams of methamphetamine. Thus, Viar did not accept

responsibility for the conduct the jury attributed to him, and

continued to deny the extent of his involvement. As a result, the

district court did not err in finding that Viar had failed to

accept responsibility for his criminal conduct and in denying him

the adjustment sought.

C.

Finally, Viar argues that his sentence was unreasonable

because it did not account for the fact that: (1) he had a

successful business that employed several individuals and supported

24
his family; (2) he had sold his business to pay the forfeiture

judgment; (3) he was elderly; and (4) he was a heavy drug user.

Viar was sentenced to 188 months, at the bottom of his advisory

Guidelines range. Although Viar argues that a variance sentence

below the Guidelines range would adequately have taken these facts

into account, the sentence imposed was nevertheless reasonable.14

Viar’s advisory Guidelines range was correctly calculated, the

court considered the relevant sentencing factors, and it chose to

sentence Viar at the low end of his advisory range. There is no

abuse of discretion apparent in this regard, and we are thus

obliged to affirm Viar’s sentence.

V.

Pursuant to the foregoing, we reject Viar’s appellate

contentions and affirm his convictions and sentence.

AFFIRMED

14
Although Viar asserts that the court erred in failing to
grant a “downward departure from the advisory guidelines,” Br. of
Appellant at 22, he is actually arguing that the court erred in
failing to impose a variance sentence. See United States v.
Hampton, 441 F.3d 284, 288 n.2 (4th Cir. 2006) (noting that
district court “utilized the language of ‘departure’ rather than
what has more recently become known as a ‘variance,’” and
explaining difference).

25