ON REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4327

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL CARL STEVENSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (7:08-cr-00057-BO-3)

Submitted: October 25, 2011 Decided: December 9, 2011

Before DAVIS, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North 

Carolina, for Appellant. George E. B. Holding, United States 

Attorney, Jennifer P. May-Parker, Denise Walker, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

After a jury trial, Michael Carl Stevenson was 

convicted of one count of conspiracy to possess with intent to 

distribute 500 grams or more of cocaine, in violation of 21 

U.S.C. §§ 841(a)(1), 846 (2006). On appeal, Stevenson’s counsel 

filed a brief claiming the evidence was insufficient to support 

the conviction. We affirmed. See United States v. Stevenson, 

No. 10-4327, 2011 WL 2837402 (4th Cir. July 19, 2011) 

(unpublished). We subsequently stayed the mandate pursuant to 

Fed. R. App. P. 41(d)(1) and granted Stevenson’s pro se petition 

for rehearing, reinstated and granted his November 2, 2010 

motion for leave to file a pro se supplemental brief and

directed the Government to file a brief addressing Stevenson’s 

pro se claim that the district court abused its discretion by

ordering a sentence at the top end of the Sentencing Guidelines, 

without indicating it considered counsel’s arguments for a 

sentence at the low end of the Guidelines or any of the 18 

U.S.C. § 3553(a) (2006) sentencing factors, citing United 

States v. Lynn, 592 F.3d 572 (4th Cir. 2010), and United 

States v. Carter, 564 F.3d 325 (4th Cir. 2009). After receiving 

the Government’s brief and conducting further review, we affirm 

the conviction and sentence.

This court reviews de novo the denial of Stevenson’s 

motion for judgment of acquittal. See United States v. Green, 
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599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct. 271 

(2010). “[V]iewing the evidence in the light most favorable to 

the Government,” United States v. Bynum, 604 F.3d 161, 166 (4th 

Cir.) (internal quotation marks omitted), cert. denied, 130 S. 

Ct. 3442 (2010), the court is to determine whether the 

conviction is supported by “substantial evidence,” where 

“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,” 

United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010)

(internal quotation marks omitted). The ultimate question is 

whether “any rational trier of facts could have found the 

defendant guilty beyond a reasonable doubt.” Bynum, 604 F.3d at 

166 (internal quotation marks omitted).

Conviction for conspiracy to distribute narcotics 

under 21 U.S.C. § 846 requires proof beyond a reasonable doubt 

of three elements: “(1) an agreement between two or more 

persons to engage in conduct that violates a federal drug law, 

(2) the defendant’s knowledge of the conspiracy, and (3) the 

defendant’s knowing and voluntary participation in the 

conspiracy.” United States v. Kellam, 568 F.3d 125, 139 (4th 

Cir.), cert. denied, 130 S. Ct. 657 (2009). “Because a 

conspiracy is by nature clandestine and covert, there rarely is 

direct evidence of such an agreement . . . [C]onspiracy is 
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usually proven by circumstantial evidence.” United States v. 

Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (internal quotation 

marks and citation omitted). Evidence supporting an agreement 

may consist of the defendant’s relationship to the other 

conspirators and his conduct and attitude during the course of 

the conspiracy. United States v. Burgos, 94 F.3d 849, 858 (4th 

Cir. 1996) (en banc).

We conclude that the evidence was sufficient to show 

that Stevenson entered into a conspiracy with Beatty and 

Patterson. Stevenson knew Beatty had a history of dealing drugs 

and had allowed him to store drugs on his property. On the day 

of the transaction, Stevenson provided Beatty with drug testing 

kits, drove him and Patterson to the location of the drug deal, 

kept his plans private from other individuals, discussed with 

the other two men that they needed to be on the same page if 

anything went wrong and agreed to accept payment of $1000 for 

driving. We conclude that this evidence of Stevenson’s conduct 

and attitude shows that he was in agreement with the other men

to purchase narcotics for the purpose of distribution.

We have reviewed the issues Stevenson presented in his 

pro se supplemental brief and conclude that none of the issues 

compel us to vacate his conviction or sentence. With regard to 

Stevenson’s sentencing issues, we have reviewed the record and 

conclude that the district court did not abuse its discretion. 
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See Gall v. United States, 552 U.S. 38, 51 (2007) (stating 

standard of review).

The court reviews first the reasonableness of the

process by which the sentencing court arrived at its decision 

and then reviews the reasonableness of the sentence itself. Id.

In determining the procedural reasonableness of a sentence, this 

court considers whether the district court properly calculated 

the Guidelines range, treated the Guidelines as advisory, 

considered the § 3553(a) factors, analyzed any arguments 

presented by the parties, and sufficiently explained the 

selected sentence. Id. “Regardless of whether the district 

court imposes an above, below, or within-Guidelines sentence, it 

must place on the record an individualized assessment based on 

the particular facts of the case before it.” United States v. 

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation 

marks omitted). Where, as here, the district court imposed a 

within-Guidelines sentence, the explanation may be “less 

extensive, while still individualized.” United States v. 

Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. denied, 130 S. 

Ct. 2128 (2010). “This is because guidelines sentences 

themselves are in many ways tailored to the individual and 

reflect approximately two decades of close attention to federal 

sentencing policy.” Id. (internal quotation marks omitted). 

However, that explanation must be sufficient to allow for 
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“‘meaningful appellate review,’” Carter, 564 F.3d at 330 

(quoting Gall, 552 U.S. at 50), such that the appellate court 

need “not guess at the district court’s rationale.” Id. at 329. 

A court’s reasoning for imposing a within-Guidelines sentence 

may be clear from anything the court said to the defendant 

throughout the sentencing hearing. See United States v. 

Thompson, 595 F.3d 544, 547 (4th Cir. 2010). 

In order to preserve a sentencing issue for appellate 

review, the defendant “must, at some point in the proceedings 

draw arguments from § 3553 for a sentence different than the one 

ultimately imposed[.]” United States v. Lynn, 592 F.3d 576, 578 

(4th Cir. 2010); see also United States v. Boulware, 604 F.3d 

832, 838 (4th Cir. 2010) (arguments under 18 U.S.C. § 3553(a) 

for a sentence different than the one imposed are sufficient to 

preserve a claim).

Under 18 U.S.C. § 3553(a), the district court should 

consider the nature and circumstances of the offense and the 

history and characteristics of the defendant, the need for the 

sentence to reflect the seriousness of the offense, to promote 

respect for the law, to provide just punishment for the offense, 

to provide adequate deterrence, to protect the public and to 

provide the defendant with educational and vocational training. 

Stevenson’s counsel requested a sentence at the low 

end of the Guidelines, asserting that such a sentence would be 
7

sufficient deterrence and would serve to protect the public. 

Because counsel’s request for a low sentence was not supported 

with anything from the record and was nothing more than a 

recitation of two of the § 3553(a) sentencing factors, we 

conclude that the court was not obliged to directly respond to 

counsel’s request. We note, in contrast, that the Government 

provided a factual basis in support of its request for a 

sentence at the high end of the Guidelines. 

We conclude that the district court properly “place[d] 

on the record an individualized assessment based on the 

particular facts of the case before it,” Carter, 564 F.3d at 

330, and adequately stated its reasoning for sentencing 

Stevenson to the high end of the Guidelines. The sentencing 

transcript demonstrates that the court, having presided over the 

trial, based the sentence on Stevenson’s history and 

characteristics. For example, the court stated the Guideline 

range and then heard arguments from defense counsel and from the 

Government. The court also permitted Stevenson to speak. 

During a colloquy with Stevenson, the court stated the 

following: “I think that you’ve had a life of manipulation and 

deceit and that you have been able to survive through those 

methodologies and that, unfortunately for you, the time has come 

where the lies and deceit have run out.”
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Even if the district court failed to give adequate 

consideration to counsel’s request for a sentence at the low end 

of the Guidelines or to the § 3553(a) sentencing factors, we 

conclude that any error was harmless. There is nothing in the 

record to suggest that the court’s approach to determining the 

sentence had an improper substantial and injurious effect or 

influence on the proceedings. See Lynn, 592 F.3d at 585. 

Accordingly, we affirm Stevenson’s conviction and 

sentence. 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