UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4656

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TYSON ANDERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Abingdon. James P. Jones, Chief

District Judge. (1:08-cr-00024-jpj-pms-9)

Submitted: July 27, 2010 Decided: August 13, 2010

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles Gregory Phillips, PHILLIPS & PHILLIPS, Salem, Virginia, 

for Appellant. Timothy J. Heaphy, United States Attorney, 

Jennifer R. Bockhorst, Assistant United States Attorney, 

Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A jury convicted Tyson Anderson of conspiracy to 

distribute and possess with intent to distribute cocaine and 

cocaine base, in violation of 21 U.S.C. § 846 (2006), and 

distribution and possession with intent to distribute cocaine 

base and aiding and abetting, in violation of 18 U.S.C. § 2 

(2006), 21 U.S.C. § 841(a) (2006). The district court sentenced 

Anderson to eighteen months of imprisonment and he now appeals. 

Finding no error, we affirm. 

On appeal, Anderson argues that there was insufficient 

evidence to support the convictions. This court reviews a 

district court’s decision to deny a Rule 29 motion for a 

judgment of acquittal de novo. United States v. Smith, 451 F.3d 

209, 216 (4th Cir. 2006). A defendant challenging the 

sufficiency of the evidence faces a heavy burden. United 

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The 

verdict of a jury must be sustained “if, viewing the evidence in 

the light most favorable to the prosecution, the verdict is 

supported by ‘substantial evidence.’” Smith, 451 F.3d at 216 

(citations 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.” Id. (internal quotation marks and citation 

omitted). Furthermore, “[t]he jury, not the reviewing court, 
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weighs the credibility of the evidence and resolves any 

conflicts in the evidence presented.” Beidler, 110 F.3d at 1067 

(internal quotation marks and citation omitted). “Reversal for 

insufficient evidence is reserved for the rare case where the 

prosecution’s failure is clear.” Id. (internal quotation marks 

and citation omitted).

In order to prove that Anderson conspired to possess 

with intent to distribute cocaine and cocaine base, the 

Government needed to show (1) an agreement between two or more 

persons, (2) that Anderson knew of the agreement, and (3) that 

Anderson knowingly and voluntarily joined the conspiracy. 

United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en 

banc) (citations omitted). However, the Government need not 

make this showing through direct evidence. In fact, “a 

conspiracy may be proved wholly by circumstantial evidence.” 

Id. at 858. A conspiracy therefore may be inferred from the 

circumstances presented at trial. Id. Furthermore, although 

the Government must prove all of the elements listed above 

beyond a reasonable doubt, “[c]ircumstantial evidence sufficient 

to support a conspiracy conviction need not exclude every 

reasonable hypothesis of innocence, provided the summation of 

the evidence permits a conclusion of guilt beyond a reasonable 

doubt.” Id.
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In order to establish possession with intent to 

distribute, the Government had to prove beyond a reasonable 

doubt that Anderson (1) knowingly, (2) possessed the cocaine 

base, (3) with the intent to distribute it. Burgos, 94 F.3d at 

873. Possession can be actual or constructive. Id. 

Furthermore, “[l]ike conspiracy, [c]onstructive possession may 

be established by either circumstantial or direct evidence.” 

Id. (internal quotation marks omitted). 

We have thoroughly reviewed the record and conclude 

that the Government provided substantial evidence from which the 

jury could conclude that Anderson was guilty of the offenses for 

which he was convicted. See id. at 862 (“[D]eterminations of 

credibility are within the sole province of the jury and are not 

susceptible to judicial review.”) (internal quotation marks and 

citation omitted). 

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 the court and argument would not aid the decisional 

process. 

AFFIRMED