Vacated by Supreme Court, filed January 22, 2008



                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4456



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LAWRENCE W. NELSON, a/k/a Zikee,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:03-cr-00049-IMK)


Submitted:   June 29, 2007                 Decided:   July 30, 2007


Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Christopher A. Davis, DAVIS LAW OFFICES, Clarksburg, West Virginia,
for Appellant. Sharon L. Potter, United States Attorney, Zelda E.
Wesley, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Lawrence W. Nelson appeals his conviction by a jury of

conspiracy to distribute and possess with intent to distribute more

than fifty grams of crack cocaine, in violation of 21 U.S.C. § 846

(2000).      The district court sentenced him to a 360-month term of

imprisonment, the bottom of the advisory sentencing guideline

range.    Nelson appeals his conviction and sentence, asserting that

the evidence was insufficient to convict, that the district court

abused its discretion in making certain evidentiary rulings and in

denying his motion for a continuance and to reopen his case, and

that   the    court   essentially    sentenced      him    under   a    mandatory

guideline scheme.      We affirm.

             Nelson first asserts that the evidence was insufficient

to convict him of conspiracy to possess with intent to distribute

and to distribute crack cocaine because the Government failed to

prove an agreement between Nelson and another person.                  This court

reviews de novo the district court’s decision to deny a motion

filed pursuant to Fed. R. Crim. P. 29.         United States v. Smith, 

, 216 (4th Cir.), cert. denied, 

 (2006).

Where, as here, the motion was based on a claim of insufficient

evidence, “[t]he verdict of a jury must be sustained if there is

substantial     evidence,   taking    the    view   most    favorable     to   the

Government, to support it.” Glasser v. United States, 

,

80 (1942); Smith, 451 F.3d at 216.             This court “can reverse a


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conviction on insufficiency grounds only when the prosecution’s

failure is clear.”    United States v. Moye, 

, 394 (4th

Cir.)   (internal   quotation    marks    and    citation   omitted),       cert.

denied, 

 (2006).

            We have carefully reviewed the trial testimony and are

convinced    that    the   Government      established         a    loosely-knit

association of members, including Nelson, whose purpose was to

distribute crack cocaine in West Virginia.             See United States v.

Strickland, 

, 384-85 (4th Cir. 2001) (discussing

elements of offense); see also United States v. Cardwell, 

, 390 (4th Cir. 2005) (“The existence of a tacit or mutual

understanding between conspirators is sufficient evidence of a

conspiratorial agreement.”) (internal quotation marks and citation

omitted), cert. denied, 

 (2006).                Although Nelson

asserts that he merely had buyer-seller relationships with those

individuals,   we   conclude    that     the    jury   could       infer   that   a

conspiracy existed from the amount of drugs exchanged.                See United

States v. Mills, 

, 485 n.1 (4th Cir. 1993) (“[E]vidence

of a buy-sell transaction, when coupled with a substantial quantity

of drugs, would support a reasonable inference that the parties

were coconspirators.”).         Thus, we find that the evidence was

sufficient to convict Nelson of conspiracy to distribute crack

cocaine.




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              Next, Nelson challenges certain evidentiary rulings on

the ground that the rulings prevented him from developing his

defense.       Nelson points to, inter alia, the district court’s

decision to allow Anthony Powell and Jamal Eddings to testify

despite their alleged late disclosure, to allow William Lohr to

testify where the substance of his testimony was not disclosed

until several days into the trial, to allow Sergeant Adams to

testify    as     a     summary     witness,      and    to     limit      counsel’s

cross-examination        of   Edward    Hollins.        We    find   no     abuse    of

discretion in the district court’s evidentiary rulings. See United

States v. Cooper, 

, 662-63 (4th Cir. 2007) (stating

standard of review).

              To the extent that Nelson also contends the cumulative

effect of the district court’s evidentiary rulings amounted to

partiality that denied him a fair trial, we review this claim for

plain error because Nelson failed to object on this ground in the

district court.        See United States v. Smith, 

, 330 (4th

Cir.) (providing standard), cert. denied, 

 (2006).

Our review of the trial testimony convinces us that there was no

error—plain or otherwise—on the district court’s part.                     Moreover,

the   court    instructed     the   jury   that    it    should      not    draw    any

inferences      from    the   court’s    statements,         rulings,      questions,

remarks, or comments and should judge independently the questions

of fact in Nelson’s case.           See United States v. Smith, 441 F.3d


                                        - 4 -
254, 269 (4th Cir.) (stating that any “cumulative effect of the

interventions      by   the   court   .    .   .   was   ameliorated   by   the

instructions to the jury[,]” and “[j]urors are presumed to adhere

to cautionary instructions issued by the district court”), cert.

denied, 

 (2006).            We therefore find that Nelson is

not entitled to relief on this claim.

           Nelson asserts that the district court erred by denying

his requests for a continuance for counsel to prepare for witnesses

not previously disclosed by the Government and by denying his

motion to reopen his case in chief to present additional testimony.

Our review of the district court’s decisions leads us to conclude

that the court did not abuse its discretion in denying either

motion.   See United States v. Williams, 

, 738 (4th

Cir.)   (stating    standard    of    review   for   denial   of   motion   for

continuance), cert. denied, 

 (2000); United States v.

Nunez, 

, 579 (4th Cir. 2005) (providing standard for

motion to reopen).

           Finally, it is well established in this circuit that a

sentence imposed within a properly calculated guideline range is

presumed to be reasonable.           See, e.g., United States v. Montes-

Pineda, 

, 379 (4th Cir.), petition for cert. filed, ___

U.S.L.W. ___ (U.S. July 21, 2006) (No. 06-5439); United States v.

Johnson, 

, 341-42 (4th Cir. 2006); United States v.

Moreland, 

, 433 (4th Cir.), cert. denied, 126 S. Ct.


                                      - 5 -
2054 (2006); United States v. Green, 

, 457 (4th Cir.),

cert. denied, 

 (2006).         Nelson claims that the

district court’s reliance on this presumption of reasonableness

rendered   the   guidelines   sentence   it   imposed   mandatory   in

contravention of United States v. Booker, 

 (2005).      We

find that Nelson’s argument is foreclosed by the Supreme Court’s

decision in Rita v. United States, ___ U.S. ___, ___, 

, at *3, *6 (U.S. June 21, 2007) (No. 06-5754).

           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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