UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5108
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY JAMES LYALL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00238)
Submitted: June 17, 2008 Decided: July 21, 2008
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harold M. Vaught, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky James Lyall was convicted by a jury of two counts
of conspiracy to possess with intent to distribute a quantity of
cocaine and a quantity of methamphetamine, in violation of 21
U.S.C. §§ 846 and 841(a)(1) (2000); one count of possessing with
intent to distribute a quantity of cocaine and a quantity of
methamphetamine, and aiding and abetting in the same, in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2000); and four counts
of possessing with intent to distribute a quantity of cocaine, and
aiding and abetting in the same, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2 (2000). The conduct for which Lyall
was convicted occurred while he was employed as a sheriff’s deputy
and narcotics detective. The district court sentenced Lyall to
concurrent terms of 121 months’ imprisonment for each count. Lyall
appeals his conviction and sentence. For the following reasons, we
affirm.
Lyall first challenges the sufficiency of the evidence
supporting his conspiracy convictions. Lyall alleges that his
co-conspirators thought they were acting as government agents, and
therefore, there was no common criminal plan. A defendant
challenging the sufficiency of the evidence faces a heavy burden.
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).
“[A]n appellate court’s reversal of a conviction on grounds of
insufficient evidence should be confined to cases where the
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prosecution’s failure is clear.” United States v. Jones, 735 F.2d
785, 791 (4th Cir. 1984) (internal quotation marks omitted). A
verdict must be upheld on appeal if there is substantial evidence
in the record to support it. Glasser v. United States, 315 U.S.
60, 80 (1942). In determining whether the evidence in the record
is substantial, this court views the evidence in the light most
favorable to the government, and inquires whether there is evidence
that a reasonable finder of fact could accept as adequate and
sufficient to establish a defendant’s guilt beyond a reasonable
doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(en banc).
“To prove a conspiracy under 21 U.S.C. § 846, the
government must prove (1) an agreement between two or more persons
to engage in conduct that violates a federal drug law, (2) the
defendant’s knowledge of the conspiracy, and (3) the defendant’s
knowing and voluntary participation in the conspiracy.” United
States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001); see
also Burgos, 94 F.3d at 857. A defendant may be convicted of
conspiracy without knowing all the conspiracy’s details, as long as
he joins the conspiracy understanding its unlawful nature and
willfully joins in the plan on at least one occasion. Burgos, 94
F.3d at 858. “The existence of a tacit or mutual understanding
between conspirators is sufficient evidence of a conspiratorial
agreement.” United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.
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2005) (internal quotation marks and citation omitted); see Burgos,
94 F.3d at 857 (“By its very nature, a conspiracy is clandestine
and covert, thereby frequently resulting in little direct evidence
of such an agreement.”)
While a person cannot be convicted of conspiring with a
government agent, see United States v. Lewis, 53 F.3d 29, 33 (4th
Cir. 1995), the co-conspirators in the present case were not in
fact acting as government agents. Accordingly, Lyall’s argument is
without merit. After reviewing the evidence adduced at trial, we
conclude that when the evidence is construed in the light most
favorable to the Government, it is sufficient to support the jury’s
verdict. Accordingly, we affirm Lyall’s conspiracy convictions.
Lyall next claims that the district court violated his
Sixth Amendment rights by enhancing his sentence based on findings
made by the court, rather than a jury. Lyall’s claim is foreclosed
by United States v. Booker, 543 U.S. 220 (2005), and its progeny.
After Booker, a district court is no longer bound by the range
prescribed by the sentencing guidelines. United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). However, courts still must
calculate the applicable guideline range after making the
appropriate findings of fact and consider the range in conjunction
with other relevant factors under the guidelines and § 3553(a).
See Gall v. United States, 128 S. Ct. 586, 596 (2007). We will
review the sentence under an abuse-of-discretion standard
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regardless of whether the sentence imposed is inside or outside of
the guidelines range. Id. at 597.
Under an advisory guidelines scheme, a district court
does not violate the Sixth Amendment by making factual findings as
to sentencing factors by a preponderance of the evidence as long as
the fact-finding does not enhance the sentence beyond the maximum
term specified in the substantive statute. See United States v.
Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding that “Booker does
not in the end move any decision from judge to jury, or change the
burden of persuasion”) (internal quotation marks omitted).
Accordingly, Lyall’s Sixth Amendment argument fails.
Finally, Lyall challenges the factual basis of the
firearm enhancement pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2D1.1(b)(1)(2005). An enhancement under USSG §
2D1.1(b)(1) is reviewed for clear error. United States v.
McAllister, 272 F.3d 228, 234 (4th Cir. 2001). Under the
guidelines, a defendant receives a two-level increase to his base
offense level under USSG § 2D1.1(b)(1) if a dangerous weapon was
possessed during the offense. This “adjustment should be applied
if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” USSG § 2D1.1(b)(1), cmt.
n.3. “Under relevant conduct principles, the enhancement applies
when the weapon was possessed in connection with drug activity that
was part of the same course of conduct or common scheme as the
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offense of conviction.” McAllister, 272 F.3d at 233-34 (internal
quotation marks and citation omitted).
Here, the evidence in the record demonstrated that Lyall
had his service revolver with him during at least one occasion when
he provided cocaine to a co-conspirator. Thus, the district court
did not clearly err in enhancing Lyall’s offense level for
possession of a weapon. See McAllister, 272 F.3d at 234 (“In order
to prove that a weapon was present, the Government need show only
that the weapon was possessed during the relevant illegal drug
activity.”)
We therefore affirm the district court’s judgment. 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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