                                 UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                 No. 07-4543


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

             v.

EVANS RAY, JR., a/k/a Charlie, a/k/a Chucky, a/k/a Charles
Evans Ray, Jr.,

                     Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:04-cr-00559-AW)


Submitted:        February 2, 2010            Decided:   February 26, 2010


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. James Roos, THE LAW OFFICES OF J. JAMES ROOS, III, Towson,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Robert K. Hur, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Evans   Ray,    Jr.   appeals        his   conviction       and   life

sentence for distribution of 50 grams or more of crack cocaine,

in violation of 21 U.S.C. § 841(a)(1) (2006).*                   Ray’s counseled

appellate brief raises the following claims:                 (1) the district

court erred when it denied his Fed. R. Crim. P. 29 motion for

judgment of acquittal; (2) the district court erred when it

rejected one of his proposed jury instructions; and (3) the

district court erroneously believed that it lacked the ability

to impose a sentence of less than life imprisonment, and thus

erred when it sentenced him to life in prison.                   We find no error

and therefore affirm.

             We turn first to Ray’s claim that the district court

should   have    granted     his   Rule      29    motion    for    judgment     of

acquittal.      We review a district court’s denial of a Rule 29

motion   for    judgment    of   acquittal    under     a   de    novo   standard.

United States v. Midgett, 488 F.3d 288, 297 (4th Cir. 2007).                      A

guilty verdict must stand “if, viewing the evidence in the light

most favorable to the Government, it is supported by substantial

evidence.”     United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

     *
       Ray was also convicted of possession of ammunition and
firearms by a convicted felon, in violation of 18 U.S.C.
§ 922(g) (2006), and sentenced to 120 months imprisonment for
that crime. On appeal, he does not challenge that conviction or
sentence.




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2005).       “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.

                 Ray first contends that the district court should have

granted his Rule 29 motion because Ray demonstrated entrapment

as a matter of law.           The defense of entrapment has two elements:

“(1) government inducement of the crime and (2) the defendant’s

lack   of    predisposition          to   engage    in   the   criminal      conduct.”

United States v. Ramos, 462 F.3d 329, 334 (4th Cir. 2006).                           The

defense uses a burden-shifting scheme, where the defendant bears

the initial burden of presenting evidence that the government

induced him to commit the crime.                   Once the defendant has done

so,    the       burden    shifts    to   the     government   to    establish       the

defendant’s predisposition beyond a reasonable doubt.                           United

States v. Jones, 976 F.2d 176, 179 (4th Cir. 1992).                     Even if the

government did induce a defendant to commit a crime, the defense

of entrapment fails if the government can prove predisposition.

United States v. Squillacote, 221 F.3d 542, 569 (4th Cir. 2000).

                 Ray argues that the government entrapped him through

its use of a cooperating witness, Timothy Patterson.                        Ray claims

that at the time of his arrest he was not involved in the drug

trade,      and     that    Patterson     convinced      him   to    sell    drugs    by

appealing to their friendship and recalling how Patterson had


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comforted Ray when Ray’s sister died.                             Even assuming, as Ray

claims, that Patterson’s appeals induced him to commit the drug

sale, we believe that the district court properly denied Ray’s

Rule    29    motion    because       the   Government           introduced      substantial

evidence that Ray was predisposed to traffic in narcotics.

              For example, Patterson testified that Ray offered to

sell    him    cocaine       in    2001     or       2002    –    prior     to   Patterson’s

cooperation      with     the      Government.              Recordings      of   Patterson’s

conversations with Ray indicate that Ray sold cocaine to other

customers, had multiple sources for the drug, and was familiar

with the code words, slang, practice and prices of the drug

trade.        See United States v. Tom, 330 F.3d 83, 90 (1st Cir.

2003)    (“[E]vidence         of     predisposition              may   be   inferred     from

conversations        in      which     a    defendant            displays    knowledge    or

experience      in     the    criminal       activity         under     investigation.”);

United States v. Hernandez, 31 F.3d 354, 360 (6th Cir. 1994)

(noting that a defendant “appeared to know a great deal about

cocaine trafficking”).               Moreover, at the time of his arrest Ray

was in possession of several tools of the drug trade – firearms

and a digital scale bearing cocaine residue.                           See United States

v. Ward, 171 F.3d 188, 195 (4th Cir. 1999) (“Guns are tools of

the drug trade and are commonly recognized articles of narcotics

paraphernalia.”).            Coupled with Ray’s prior convictions for drug

trafficking, this evidence was sufficient to permit a reasonable


                                                 4
jury    to     conclude       beyond        a    reasonable             doubt      that      Ray    was

predisposed to distribute crack cocaine.                                  Thus, the district

court properly denied Ray’s Rule 29 motion for acquittal.

               Next, we consider Ray’s claim that the district court

erred by refusing to give a jury instruction clarifying to the

jury    that    the     prior        convictions           of    a   defendant          raising      an

entrapment          defense     are     not          conclusive         of      the    defendant’s

predisposition.             “[T]he     decision            of    whether      to      give     a   jury

instruction and the content of an instruction are reviewed for

an abuse of discretion.”                United States v. Ellis, 121 F.3d 908,

923 (4th Cir. 1997).            “To determine whether the district court’s

failure to give the requested charge is reversible error, we

must determine whether the instruction (1) was correct; (2) was

not substantially covered by the court’s charge to the jury; and

(3)    dealt    with     some    point          in       the    trial    so     important,         that

failure to give the requested instruction seriously impaired the

defendant’s ability to conduct his defense.”                                  United States v.

Squillacote, 221 F.3d 542, 564-65 (4th Cir. 2000) (citations and

internal quotation marks omitted).

               We    find     that    the       district         court’s      refusal        to    give

Ray’s    requested          instruction          did       not    seriously           impair       Ray’s

ability to conduct his defense.                          As noted above, the Government

presented a considerable amount of evidence, apart from Ray’s

prior convictions, from which a jury could conclude that Ray was


                                                     5
predisposed to deal in crack cocaine.                   Given this evidence, it

is   difficult    to   see    how    Ray    was    prejudiced    by    the    district

court’s refusal to adopt Ray’s proposed instruction.                           “[E]ven

where use or denial of a jury instruction is in error, reversal

is   warranted    only      when    the    error   is   prejudicial     based    on   a

review of the record as a whole.”                See Ellis, 121 F.3d at 923.

            Finally, Ray claims that the district court mistakenly

believed that it lacked the authority to impose a sentence of

less than life imprisonment.               In particular, Ray argues that his

career offender status under the Sentencing Guidelines “clearly

overstates the seriousness of [his] criminal history,” and he

points out that the district court agreed with this assessment.

Ray’s    argument      is    meritless,         however,     because   the     career-

offender enhancement under § 4B1.1 of the Sentencing Guidelines

did not play a role in his sentence.                         Rather,   Ray faced a

statutory mandatory minimum sentence of life imprisonment under

21 U.S.C. § 841(b)(1)(A).             As we have explained, “[e]xcept upon

motion of the Government on the basis of substantial assistance,

a    district    court      still    may     not    depart     below   a     statutory

minimum.”       United States v. Robinson, 404 F.3d 850, 862 (4th

Cir. 2005).       The district court thus did not err in imposing

Ray’s sentence.

            Accordingly, we affirm the district court’s judgment.

We dispense with oral argument because the issues are adequately


                                            6
presented   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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