UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4254
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARED JAMILE FITZGERALD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:10-cr-00006-jlk-1)
Submitted: October 27, 2011 Decided: November 4, 2011
Before KING, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Weber, III, WEBERPEARSON, PC, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jared Jamile Fitzgerald was convicted by a jury of
conspiracy to distribute and possess with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006)
(Count One); distribution of cocaine base, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C) (2006) (Counts Three and Five);
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2006) (Count Four);
and commission of a criminal offense while on pretrial release,
in violation of 18 U.S.C. § 3147 (2006) (Count Six). The
district court imposed a total sentence of 169 months of
imprisonment, and Fitzgerald timely appealed. We affirm.
On appeal, Fitzgerald first challenges the district
court’s denial of his Rule 29 motions for judgment of acquittal,
contending that the evidence was insufficient to support his
convictions. We review the district court’s denial of a motion
for a judgment of acquittal de novo. United States v. Green,
599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct. 271
(2010). We are obligated to sustain a guilty verdict “if,
viewing the evidence in the light most favorable to the
prosecution, the verdict is supported by ‘substantial
evidence.’” United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006) (citations omitted). Substantial evidence is “evidence
that a reasonable finder of fact could accept as adequate and
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sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Id. (internal quotation marks and citation
omitted).
A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). Furthermore, “[t]he jury, not
the reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented.” Id. at 1067
(internal quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted). With these standards in mind, we have
reviewed the record and conclude that the evidence was
sufficient to support Fitzgerald’s convictions.
Fitzgerald next argues that the district court
violated his Fifth Amendment right to fundamental fairness and
due process when it calculated his Sentencing Guidelines range
based on the determination that a preponderance of the evidence
supported an attributable drug weight of 164.68 grams of cocaine
base despite the jury’s determination beyond a reasonable doubt
that he was responsible for less than five grams. We review a
sentence for abuse of discretion. Gall v. United States, 552
U.S. 38, 51 (2007). “The first step in this review requires us
to ensure that the district court committed no significant
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procedural error, such as . . . improperly calculating . . . the
Guidelines range.” United States v. Osborne, 514 F.3d 377, 387
(4th Cir. 2008) (internal quotation marks and citation omitted).
We review the district court’s findings of fact for
clear error. United States v. Thompson, 554 F.3d 450, 452 (4th
Cir. 2009). “Clear error occurs when, although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Harvey, 532 F.3d
326, 336-37 (4th Cir. 2008) (internal quotation marks and
citations omitted). “[W]hen a district court’s factual finding
is based upon assessments of witness credibility, such finding
is deserving of the highest degree of appellate deference.”
Thompson, 554 F.3d at 452 (internal quotation marks and citation
omitted).
We have expressly authorized lower courts to consider
acquitted or uncharged conduct in establishing drug amounts in
sentencing. United States v. Watts, 519 U.S. 148, 156-57
(1997); United States v. Perry, 560 F.3d 246, 258 (4th Cir.
2009). Indeed, the sentencing court is not bound by the
evidence presented at trial when determining drug quantity or
other relevant conduct and must consider reliable evidence of
relevant conduct. United States v. Young, 609 F.3d 348, 358
(4th Cir. 2010).
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We conclude that the district court did not err in its
determination that a preponderance of evidence established that
Fitzgerald was responsible for 164.68 grams of cocaine base.
Furthermore, the explanation offered by the district court for
its chosen sentence was sufficient to demonstrate its
individualized assessment of the circumstances of Fitzgerald’s
case. Consequently, Fitzgerald’s challenges to his sentence are
without merit.
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 the
court and argument would not aid the decisional process.
AFFIRMED
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