UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5043

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALVIN DWIGHT FAIR,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Statesville. Richard L. Voorhees,

District Judge. (5:03-cr-00051-1)

Submitted: August 20, 2007 Decided: August 29, 2007

Before TRAXLER, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Norman Butler, THE LAW OFFICE OF NORMAN BUTLER, Charlotte, North

Carolina, for Appellant. Gretchen C. F. Shappert, United States

Attorney, Jonathan Vogel, Assistant United States Attorney,

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A jury convicted Alvin Dwight Fair of conspiracy to

possess with intent to distribute cocaine base, 21 U.S.C. § 846

(2000), possession with intent to distribute cocaine base (three

counts), 21 U.S.C. § 841 (2000), use and carry of a firearm during

and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)

(2000), and possession of a firearm by a convicted felon, 18 U.S.C.

§ 922 (g)(1) (2000). He was sentenced to 300 months of

imprisonment. On appeal, Fair argues that the district court erred

in: (1) denying defense counsel’s motion for a pretrial mental

examination to determine Fair’s competency to stand trial; (2)

admitting inadmissible hearsay statements; (3) denying his motion

for a judgment of acquittal as to the firearm counts on the basis

that they were unsupported by substantial evidence; and (4)

sentencing him for trafficking in “crack” cocaine. We affirm.

Fair first argues that the district court erred in

denying defense counsel’s motion for a pretrial mental examination

to determine his competency to stand trial. The determination of

whether a defendant is competent to stand trial is a factual

determination, and the district court’s factual findings regarding

competency are disturbed only if clearly erroneous. United States

v. Morgano, 39 F.3d 1358, 1373 (7th Cir. 1994); cf. United States

v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992) (reviewing for clear

error a competency determination under 18 U.S.C. § 4246 (2000)).
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The test for mental competence is whether the defendant

“has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding—and whether he has a

rational as well as factual understanding of the proceedings

against him.” Dusky v. United States, 362 U.S. 402, 402 (1960)

(per curiam); see also 18 U.S.C. § 4241(a) (2000) (providing that

district court should hold hearing to determine defendant’s mental

competency if there is reasonable cause to believe that defendant

may presently be suffering from a mental disease or defect

rendering him mentally incompetent to the extent he is unable to

understand nature and consequences of the proceedings against him

or to assist properly in his defense). Indicia of competence can

include a defendant’s behavior, his demeanor at trial, and any

prior medical opinion on competence. Drope v. Missouri, 420 U.S.

162, 180 (1975). The district court must only ensure the defendant

has the ability to understand, the ability to assist, and the

ability to communicate with his attorney; it is not required to

determine whether the defendant actually acted in accordance with

his ability. Bell v. Evatt, 72 F.3d 421, 432 (4th Cir. 1995).

We have reviewed the record and in particular the

transcript of the hearing on defense counsel’s “Motion for Pretrial

Psychiatric and/or Psychological Examination.” The district court

adequately considered counsel’s affidavit and questioned Fair as to

his understanding of the proceedings against him. We find that the
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district court did not err in finding Fair competent to stand trial

and thereby did not err in denying counsel’s motion for a mental

examination.

 Next, Fair maintains that the court erred in admitting

inadmissable hearsay evidence, specifically, statements made by two

non-testifying co-defendants. The Government responds that the

disputed testimony was not hearsay as the statements were made by

a co-conspirator and therefore admissible under Fed. R. Evid.

801(d)(2)(E). 

This court reviews evidentiary rulings under Fed. R.

Evid. 801(d)(2)(E) for an abuse of discretion. United States v.

Blevins, 960 F.2d 1252, 1255-56 (4th Cir. 1992). Factual findings

as to the scope of the conspiracy are reviewed for clear error,

Bourjaily v. United States, 483 U.S. 171, 181 (1987), and are only

overturned on appeal for an abuse of discretion. Blevins, 960 F.2d

at 1255. A statement is not hearsay if it is offered against the

defendant and is a statement by a co-conspirator of the defendant

during the course of and in furtherance of the conspiracy. Fed. R.

Evid. 801(d)(2)(E). Accordingly, when the Government shows by a

preponderance of the evidence that (1) a conspiracy existed of

which the defendant was a member, and (2) the co-conspirators’

statements were made in furtherance of the conspiracy, the

statements are admissible. United States v. Neal, 78 F.3d 901, 905

(4th Cir. 1996); Blevins, 960 F.2d at 1255. The party seeking to
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introduce the co-conspirator statement bears the burden of

establishing these preliminary facts for admissibility, but it need

only do so by a preponderance of the evidence. Bourjaily, 483 U.S.

at 176. In resolving these preliminary factual questions for

admissibility, the court may consider all evidence before it,

whether admissible at trial or not, including the co-conspirator

statements sought to be admitted. Id. at 176-81. This court

reviews a district court’s findings of fact with respect to these

threshold criteria for admission under the clearly erroneous

standard. Id. at 181; Blevins, 960 F.2d at 1255. We find that

there is sufficient evidence to support the court’s finding that

the disputed statements were made by co-conspirators in the course

of the conspiracy and, therefore, were admissible as non-hearsay

under Fed. R. Evid. 801(d)(2)(E).

Fair also argues that the district court erred in denying

his Fed. R. Crim. P. 29 motion for acquittal based on insufficient

evidence to support his 18 U.S.C. § 924(c)(1) and 922(g)(1)

charges. This court reviews the district court’s decision to deny

a Rule 29 motion de novo. United States v. Smith, 451 F.3d 209,

216 (4th Cir.), cert. denied, 127 S. Ct. 197 (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, 315 U.S. 60, 80 (1942);
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Smith, 451 F.3d at 216. This court has “defined ‘substantial

evidence’ as ‘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.’” Smith, 451 F.3d at

216 (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc)). This court “must consider circumstantial as well

as direct evidence, and allow the government the benefit of all

reasonable inferences from the facts proven to those sought to be

established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982). In evaluating the sufficiency of the evidence, this

court does not review the credibility of the witnesses and assumes

that the jury resolved all contradictions in the testimony in favor

of the Government. United States v. Romer, 148 F.3d 359, 364 (4th

Cir. 1998). This court “can reverse a conviction on insufficiency

grounds only when the prosecution’s failure is clear.” United

States v. Moye, 454 F.3d 390, 394 (4th Cir.) (internal quotation

marks and citation omitted), cert. denied, 127 S. Ct. 452 (2006).

We have reviewed the record and find sufficient evidence to support

the jury’s § 922(g)(1) and § 924(c)(1) convictions. Accordingly,

we find no error in the district court’s denial of Fair’s motion

for acquittal on these two counts.

Last, Fair argues that the indictment did not specify

that the cocaine base involved was “crack” and, because the jury

did not find it was “crack,” he is not subject to the statutory
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mandatory minimum sentence of ten years or the applicable enhanced

sentence of twenty years as those mandatory minimums apply only to

fifty grams or more of “crack cocaine.” Tracking the language of

21 U.S.C. § 841(b)(1)(A)(iii) (2000), the indictment charged Fair

with conspiracy to possess with intent to distribute cocaine base

and possession with intent to distribute cocaine base. This court

has opined that “cocaine base” and “crack cocaine” are

interchangeable terms. United States v. Ramos, 462 F.3d 329, 334

(4th Cir.), cert. denied, 127 S. Ct. 697 (2006). Therefore, the

distinction Fair draws between crack cocaine and cocaine base is

without merit.

Accordingly, we affirm Fair’s convictions 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