UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4266


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DEBON DERONE SIMS, JR.,

                    Defendant - Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., Chief District Judge. (1:15-cr-00239-WO-1)


Submitted: March 28, 2017                                         Decided: April 17, 2017


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Gregory Davis, Assistant Federal Public
Defender, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States
Attorney, Randall S. Galyon, Assistant United States Attorney, Kimberly F. Davis,
Special Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A federal jury convicted Debon Derone Sims, Jr., of conspiracy to distribute

cocaine, in violation of 21 U.S.C. § 846 (2012); international travel to facilitate the

distribution of cocaine, in violation of 18 U.S.C. § 1952(a)(3) (2012) (Travel Act); use of

a communication facility to facilitate the distribution of cocaine, in violation of 21 U.S.C.

§ 843(b) (2012); and possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a) (2012). The district court sentenced Sims to 54 months of imprisonment

and he now appeals. Finding no error, we affirm.

       Sims first challenges the sufficiency of the evidence to support his convictions,

arguing that there was not substantial evidence to demonstrate that he knowingly

conspired to distribute, or possessed with intent to distribute, cocaine. We review a

district court’s decision to deny a Fed. R. Crim. P. 29 motion for a judgment of acquittal

de novo. United States v. Smith, 

, 216 (4th Cir. 2006). A defendant

challenging the sufficiency of the evidence faces a heavy burden. United States v.

Beidler, 

, 1067 (4th Cir. 1997). In determining whether the evidence is

sufficient to support a conviction, we determine “whether there is substantial evidence in

the record, when viewed in the light most favorable to the government, to support the

conviction.” United States v. Palacios, 

, 248 (4th Cir. 2012) (internal

quotation marks omitted). 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.”       

marks omitted).      Furthermore,



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“[d]eterminations of credibility are within the sole province of the jury and are not

susceptible to judicial review.” 

marks omitted).

       “To establish a drug conspiracy under 21 U.S.C. § 846, the government must

prove that (1) the defendant entered into an agreement with one or more persons to

engage in conduct that violated 21 U.S.C. § 841(a)(1); (2) that the defendant had

knowledge of that conspiracy; and (3) that the defendant knowingly and voluntarily

participated in the conspiracy.” United States v. Howard, 

, 525 (4th Cir.

2014) (internal quotation marks and alterations omitted). The government can prove the

existence of a conspiracy wholly through circumstantial evidence. 

conviction

under § 841(a), the government must show that a defendant knowingly or intentionally

possessed a controlled substance with the intent to distribute it. United States v. Blue,

, 232 (4th Cir. 2015). For constructive possession, the defendant must have

had knowledge of the existence of the drugs, and the power to exercise dominion and

control over the drugs. 

a Travel Act violation, the government must show (1) interstate or

foreign travel, (2) an intent to promote an unlawful activity, and (3) performance or

attempted performance of an unlawful act. United States v. Gallo, 

, 1194

(4th Cir. 1986). Finally, for a violation of § 843(b), the government must demonstrate

that a defendant used a telephone to facilitate the distribution of cocaine, and may

establish facilitation by showing that the calls assisted or aided the distribution in some

way. 

The evidence demonstrates that Sims twice traveled to the United

States Virgin Islands between January and February 2015, during which time he used a

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telephone to communicate with persons there on several occasions. In February 2015, a

package was mailed to Sims’ address from the Virgin Islands that was intercepted by

authorities and discovered to contain a kilogram of cocaine. Our thorough review of the

record leads us to conclude that there was sufficient evidence from which the jury could

conclude that Sims knowingly agreed to distribute, and knowingly possessed with intent

to distribute, cocaine.

       Sims also challenges the district court’s admission of evidence derived from his

cellular telephone of receipts of wire transfers to persons in the Virgin Islands and

deliveries of other packages from the Virgin Islands to addresses in New York and North

Carolina. A district court should exclude relevant evidence when “its probative value is

‘substantially outweighed’ by the potential for undue prejudice, confusion, delay or

redundancy.” United States v. Queen, 

, 994 (4th Cir. 1997) (quoting Fed. R.

Evid. 403). “Prejudice, as used in Rule 403, refers to evidence that has an undue

tendency to suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.” 

marks omitted).

       We apply “a highly deferential standard of review to such an issue, and a trial

court’s decision to admit evidence over a Rule 403 objection will not be overturned

except under the most extraordinary circumstances, where that discretion has been plainly

abused.” United States v. Hassan, 

, 132 (4th Cir. 2014) (internal quotation

marks omitted). Therefore, we look “at the evidence in a light most favorable to its

proponent, maximizing its probative value and minimizing its prejudicial effect.” United

States v. Cole, 

, 153 (4th Cir. 2011).        Here, the evidence was highly

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probative of Sims’ connection to the drugs being mailed from the Virgin Islands. Sims

has failed to demonstrate that any undue prejudice substantially outweighed this

probative value and we therefore conclude that the district court did not abuse its

discretion in admitting the evidence.

       Finally, Sims challenges the district court’s supplemental instruction to the jury

that it was not necessary that the Government prove that Sims knew the exact nature of

the controlled substance so long as the proof shows beyond a reasonable doubt that he

knew that the item was a controlled substance. “The decision to give or not to give a jury

instruction is reviewed for an abuse of discretion,” United States v. Hurwitz, 

, 474 (4th Cir. 2006) (internal quotation marks omitted), while the correctness of a

jury instruction is reviewed do novo, as a question of law. United States v. Ali, 

, 186 (4th Cir. 2013). “We review a jury instruction to determine whether, taken as a

whole, the instruction fairly states the controlling law.”     

(internal quotation marks omitted). Moreover, “the necessity, extent[,] and character of

any supplemental instructions to the jury are matters within the sound discretion of the

district court.” United States v. Horton, 

, 546 (4th Cir. 1990) (citations

omitted). The district court’s instruction was a correct statement of the law. See United

States v. Brower, 

, 276-77 (4th Cir. 2003); see also 

.

We therefore discern no abuse of discretion in the court’s supplemental jury instruction.




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      Accordingly, we affirm the judgment of the district court. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid in the decisional process.



                                                                              AFFIRMED




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