Case Information
*1 Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John M. Ervin, III, Darlington, South Carolina, for Appellant. Stacey Denise Haynes, Assistant United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. *2
PER CURIAM:
A federal grand jury charged Javis Sherard McKenzie in a third superseding indictment with conspiracy to possess with intent to distribute and to distribute fifty grams or more of cocaine base (“crack”) and five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (2006) (Count One), [1] use of a communication facility (a telephone) to facilitate the commission of a felony under the Controlled Substances Act, in violation of 21 U.S.C. § 843(b) (2006) and 18 U.S.C. § 2 (2006) (Counts Seven, Eight, and Nine), and possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) & (e) (2006) (Count Seventy-Nine). The jury convicted McKenzie on all counts. The district court sentenced McKenzie to concurrent terms of imprisonment of 480 months on Count One, forty-eight months on each of Counts Seven through Nine, and 120 months on Count Seventy-Nine, a downward variance from the federal guidelines range of life imprisonment.
McKenzie timely appealed. Counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), finding no meritorious grounds for appeal but questioning whether the district court erred by denying McKenzie’s Fed. R. Crim. P. 29 *3 motion for judgment of acquittal on Counts One and Seven through Nine. McKenzie filed a pro se supplemental brief. [2] We affirm.
McKenzie’s attorney challenges the denial of the Rule
29 motion, but ultimately concludes that the evidence was
sufficient to support McKenzie’s convictions. This court
reviews the district court’s decision to deny a Rule 29 motion
de novo.
United States v. Reid, 523 F.3d 310, 317 (4th Cir.),
cert. denied,
Our review of the record reveals that the evidence
supported the jury’s verdict. Regarding the conspiracy count,
testimony disclosed that McKenzie worked with several others to
distribute large quantities of cocaine and crack. See Reid, 523
F.3d at 317 (stating that, to prove § 846 violation,
“[G]overnment was required to establish (1) an agreement to
possess with intent to distribute cocaine base existed between
two or more persons; (2) [defendant] knew of the conspiracy; and
(3) [defendant] knowingly and voluntarily became part of the
conspiracy.”). Turning to Counts Seven through Nine, testimony
and McKenzie’s recorded telephone conversations established that
McKenzie knowingly used a telephone on the relevant days to
facilitate the conspiracy. See United States v. Henao-Melo, 591
F.3d 798, 802 n.5 (5th Cir. 2009) (Ҥ 843(b) requires proof that
a defendant (1) knowingly or intentionally (2) used a
communication facility (3) to facilitate the commission of a
drug offense.”), cert. denied
,
In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm McKenzie’s convictions and sentence. This court requires that counsel inform McKenzie, in writing, of his right to petition the Supreme Court of the United States for *5 further review. If McKenzie 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 McKenzie. 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
Notes
[1] The conspiracy charge originally also included marijuana, but this portion of the indictment was dismissed.
[2] In his pro se brief, McKenzie challenges the admission of testimony concerning aspects of gang life and the lack of a curative jury instruction addressing sequestration of witnesses. We conclude that his claims are without merit.