UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4121
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTAWIN BURGESS, a/k/a Hicky,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-00791-TLW-1)
Submitted: May 24, 2010 Decided: June 30, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ralph J. Wilson, Conway, South Carolina, for Appellant. Arthur
Bradley Parham, Assistant United States Attorney, Florence,
South Carolina, William Walter Wilkins, III, United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Antawin Burgess was convicted of
one count of conspiracy to possess with intent to distribute
fifty grams or more of crack cocaine and five kilograms or more
of powder cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A) (2006), and one count of possession with intent to
distribute a quantity of cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C). He was sentenced to 324 months’
imprisonment. His counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying there are no
meritorious arguments for appeal but asking this court to review
the sufficiency of the evidence. Burgess filed a pro se
supplemental brief challenging the use of a 1999 conviction to
increase the minimum statutory sentence. We affirm.
“A defendant challenging the sufficiency of the
evidence . . . bears a heavy burden.” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks
omitted). “[A]n appellate court’s reversal of a conviction on
grounds of insufficient evidence should be ‘confined to cases
where the prosecution’s failure is clear.’” United States v.
Jones, 735 F.2d 785, 791 (4th Cir. 1984) (quoting Burks v.
United States, 437 U.S. 1, 17 (1978)). 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).
2
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-
63 (4th Cir. 1996).
The elements of a drug conspiracy are as follows:
(1) an agreement to violate the drug laws existed between two or
more persons, (2) the defendant knew of the conspiracy, and
(3) the defendant knowingly and voluntarily became a part of the
conspiracy. Burgos, 94 F.3d at 857. We find more than
sufficient evidence to support the conspiracy conviction.
Likewise, there was sufficient evidence to support the
possession conviction. In addition, there is nothing in the
record to suggest that the jury based its decision on anything
other than the trial evidence.
We find no error with respect to the use of a 1999
felony conviction for possession of crack cocaine in order to
increase Burgess’ statutory minimum sentence. The conviction
was final prior to Burgess ending his participation in the
conspiracy. See United States v. Howard, 115 F.3d 1151, 1158
(4th Cir. 1997); United States v. Lovell, 16 F.3d 494, 497 (2d
Cir. 1994).
3
We have also reviewed the presentence investigation
report and the sentencing transcript, including counsel’s
argument for a lenient sentence, and find there was no
procedural or substantive error in the district court’s decision
to impose a sentence at the low end of the properly calculated
advisory Guidelines.
In accordance with Anders we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Burgess’ conviction and sentence. This
court requires that counsel inform Burgess, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Burgess requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Burgess. 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
4