UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5744

ONTARIO LAMAR GAINEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CR-94-68-H)

Submitted: May 21, 1996

Decided: June 18, 1996

Before HAMILTON and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert D. Jacobson, Lumberton, North Carolina, for Appellant.

Janice McKenzie Cole, United States Attorney, J. Douglas McCullough, Assistant United States Attorney, Raleigh, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Ontario Lamar Gainey was convicted of one count of

conspiracy to possess with intent to distribute cocaine base, 21 U.S.C.

§ 846 (1988). On appeal, he contends the district court erred by denying his motions for judgment of acquittal, the Government failed to

establish drug quantities for sentencing purposes by a preponderance

of the evidence, and that he should have received a downward adjustment for being a minor participant in the drug conspiracy. Finding no

error, we affirm.

Gainey was indicted with thirty-nine other defendants for taking

part in a wide-ranging cocaine conspiracy. The conspiracy's admitted

leader, Berry Bryant, testified that he sold cocaine base ("crack") to

Gainey on a weekly basis for "nine to 12 months, about a year." Additionally, Dwayne Robinson testified that he sold crack he purchased

from Bryant to Gainey for approximately one-and-a-half years. Robinson stated that Gainey "dealt drugs for me." Gainey moved for a

judgment of acquittal at the close of the Government's evidence and

at the close of all the evidence, but the district court denied both

motions.

After conviction, Gainey objected to the amount of drugs attributed

to him by the presentence report. He stated that he"denied his

involve[ment] in the entire thing and he just doesn't think he should

be attributed to any of it." Gainey offered no other basis for his objection. Additionally, Gainey requested a two-point downward adjustment under USSG § 3B1.2 (Nov. 1994) for being a minor or minimal

participant. The district court denied both motions.

We review a district court's denial of a motion for judgment of

acquittal under a sufficiency of the evidence standard. United States

v. Brooks, 957 F.2d 1138, 1147 (4th Cir.), cert. denied, 505 U.S. 1228

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(1992). To sustain a conviction, the evidence viewed in the light most

favorable to the government must be sufficient for a rational jury to

find the essential elements of the crime beyond a reasonable doubt.

United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see

Glasser v. United States, 315 U.S. 60, 80 (1982). To support a conviction for conspiracy under 21 U.S.C. § 846, the Government must

show the existence of a conspiracy and the defendant's knowledge of

and voluntary joinder in that conspiracy. United States v. Bell, 954

F.2d 232, 236 (4th Cir. 1992). Once the existence of a conspiracy is

shown, "the evidence need only establish a slight connection between

the defendant and the conspiracy to support conviction." Brooks, 957

F.2d at 1147 (citing United States v. Seni, 662 F.2d 277, 285 n. 7 (4th

Cir. 1981), cert. denied, 455 U.S. 950 (1982)).

The Government presented sufficient evidence to sustain Gainey's

conviction for conspiracy. The conspiracy's admitted leader, Bryant,

testified that he sold drugs to Gainey on a weekly basis for "about a

year." Additionally, Robinson testified that Gainey dealt drugs for

him--drugs Robinson purchased from Bryant. While Gainey contends that this Court should seriously scrutinize Bryant and Robinson's testimony, the credibility of witnesses is an issue solely within

the province of the jury. United States v. Russell, 971 F.2d 1098, 1109

(4th Cir. 1992), cert. denied, 506 U.S. 1066 (1993). Thus, the district

court did not err in denying Gainey's motions for judgment of acquittal.

Next, we employ a clearly erroneous standard to review a district

court's determination of drug amounts, United States v. Goff, 907

F.2d 1441, 1444 (4th Cir. 1990), and to review its factual findings

upon a defendant's objection. United States v. McManus, 23 F.3d

878, 882 (4th Cir. 1994) (citing Fed. R. Crim. P. 32; United States v.

Eschweiler, 782 F.2d 1385 (7th Cir. 1986)). While the Government

bears the burden of proving the quantity of drugs by a preponderance

of the evidence, Goff, 907 F.2d at 1444, a defendant challenging the

amount bears the burden of showing its inaccuracy. United States v.

Terry, 916 F.2d 157, 162 (4th Cir. 1990). A mere objection to the

finding in the presentence report is insufficient. Id. Rather, the defendant has an affirmative duty to show that the information in the report

is unreliable and articulate the reasons why its facts are inaccurate. Id.

Without such an affirmative showing, the district court is "`free to

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adopt the findings of the [presentence report] without more specific

inquiry or explanation.'" Id. (quoting United States v. Mueller, 902

F.2d 336, 346 (5th Cir. 1990)).

In challenging the drug quantities noted in the presentence report,

Gainey failed to specifically articulate the reasons why they were

erroneous. Rather, he merely stated that he "denied his involve[ment]

in the entire thing and he just doesn't think he should be attributed to

any of it." Such a conclusory allegation is insufficient to meet his

affirmative duty to show that the presentence report's information

was inaccurate. Thus, Gainey's claim is without merit.

Additionally, Gainey's claim that the district court failed to make

specific factual findings as to the drug amounts after his objection

also is without merit. Because Gainey failed to make an affirmative

showing of the presentence report's inaccuracies, the district court

was "`free to adopt the findings of the [presentence report] without

more specific inquiry or explanation.'" Id. 

Finally, we review a district court's decision not to adjust downward under § 3B1.2 under the clearly erroneous standard. United

States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). Under

§ 3B1.2, a district court may grant a two-point downward adjustment

if the defendant played a minor role in the offense. Brooks, 957 F.2d

at 1149.

The district court did not clearly err in refusing to grant the adjustment. The trial testimony established that Gainey was involved in the

Bryant conspiracy for at least a year and a half. His involvement did

not comprise a single event, but an extended connection. Additionally, a drug seller in a drug conspiracy generally cannot be considered

a minor participant. Id.

Accordingly, we affirm Gainey's conviction and sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the material before the court and argument

would not aid the decisional process.

AFFIRMED

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