UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4301

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAVIS SHERARD MCKENZIE,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Joseph F. Anderson, Jr., District 

Judge. (3:07-cr-00155-JFA-3)

Submitted: August 26, 2010 Decided: September 23, 2010

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

McKenzie timely appealed. Counsel has filed a brief 

pursuant to 

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. 

Anders v. California

 1 The conspiracy charge originally also included marijuana, 

but this portion of the indictment was dismissed.

, 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 
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motion for judgment of acquittal on Counts One and Seven through 

Nine. McKenzie filed a pro se supplemental brief.2

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. 

We affirm.

United States v. Reid, 523 F.3d 310, 317 (4th Cir.), 

cert. denied, 129 S. Ct. 663 (2008). 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, 315 U.S. 60, 80 (1942); Reid, 

523 F.3d at 317. “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.” Reid, 523 F.3d at 317 (internal quotation 

marks and citation omitted). This court “can reverse a 

conviction on insufficiency grounds only when the prosecution’s 

failure is clear.” United States v. Moye

 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.

, 454 F.3d 390, 394 
4

(4th Cir. 2006) (en banc) (internal quotation marks and citation 

omitted).

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) (“§ 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 

, 130 S. Ct. 2392 (2010). 

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 
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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