UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4949
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSAND FARMER, a/k/a Johan Farmer,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cr-00271-FL-3)
Submitted: May 17, 2012 Decided: June 5, 2012
Before KING, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Josand Farmer was found guilty of one count of
participating in a conspiracy to distribute and possess with the
intent to distribute fifty or more grams of cocaine base, one
kilogram or more of phencyclidine, and a quantity of 3, 4
methylenedioxymethamphetamine, in violation of 21 U.S.C. § 846
(2006), and two counts of distributing cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2006). He was sentenced to
three concurrent terms of 360 months’ imprisonment. We affirm.
On appeal, Farmer’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he states
that he can find no meritorious issues for appeal. Counsel
seeks our review of whether Farmer’s conspiracy conviction was
supported by sufficient evidence, whether the Government
vindictively filed a 21 U.S.C. § 851 (2006) notice after Farmer
elected to stand trial, and whether Farmer’s sentence was
manipulated because law enforcement agents made repeated drug
transactions with members of the conspiracy.
The district court twice denied Farmer’s motions for a
judgment of acquittal during trial. We review the denial of
such a motion de novo. United States v. Smith, 451 F.3d 209,
216 (4th Cir. 2006). A defendant challenging the sufficiency of
the evidence faces a heavy burden. United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997). We will sustain a verdict
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“if, viewing the evidence in the light most favorable to the
prosecution, the verdict is supported by ‘substantial
evidence.’” Smith, 451 F.3d at 216. Substantial evidence is
“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. (internal quotation marks
omitted). “Reversal for insufficient evidence is reserved for
the rare case where the prosecution’s failure is clear.”
Beidler, 110 F.3d at 1067 (internal quotation marks omitted).
We do not find anything approaching a clear failure by
the prosecution. Multiple witnesses testified to Farmer’s
direct involvement in the drug distribution conspiracy.
Although Farmer testified to the contrary, and maintains in his
pro se supplemental brief that the Government’s witnesses were
lying, we are mindful that “the jury, not the reviewing court,
weighs the credibility of the evidence and resolves any
conflicts in the evidence presented.” Beidler, 110 F.3d at 1067
(internal quotation marks and brackets omitted). We find that
the evidence was sufficient to support Farmer’s conspiracy
conviction.
We similarly find that Farmer was not the victim of
vindictive prosecution based on the Government’s filing of a 21
U.S.C. § 851 notice after Farmer elected to stand trial. The
Government’s decision to seek a stiffer penalty at trial does
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not rise to the level of vindictive prosecution. See United
States v. Morsley, 64 F.3d 907, 920 (4th Cir. 1995); see also
Bordenkircher v. Hayes, 434 U.S. 357, 363-65 (1978). Nor do we
find that Farmer was the victim of sentencing manipulation
because law enforcement agents monitored six drug transactions
with members of the conspiracy instead of initiating arrests
after the first transaction. Such investigative efforts do not
rise to the level of outrageousness necessary to support a claim
of sentencing manipulation. See United States v. Jones, 18 F.3d
1145, 1154-55 (4th Cir. 1994). We have reviewed the other
issues raised by Farmer in his pro se supplemental brief and
find none to be meritorious.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Farmer, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Farmer requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Farmer.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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