United States v. Richard , 71 F. App'x 294 ( 2003 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS           July 14, 2003
    FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
    Clerk
    No. 02-31117
    Summary Calendar
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    LIONEL RICHARD, JR
    Defendant - Appellant
    --------------------
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 01-CR-10010-1
    --------------------
    Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
    PER CURIAM:*
    Lionel Richard, Jr., appeals his jury conviction for
    conspiracy to possess with intent to distribute more than 50
    grams of cocaine base, marijuana, and codeine; possession with
    intent to distribute more than 50 grams of cocaine base; and
    possession with intent to distribute codeine.   He argues that the
    evidence is insufficient to support his convictions.     The
    evidence established that Richard, James Hampton, and others sold
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    No. 02-31117
    -2-
    large amounts of marijuana, cocaine base, and codeine syrup in
    Alexandria, Louisiana, from March 1995 through August 1997.    The
    evidence also established that at the time of Richard’s arrest,
    he and Shundas Oden were traveling by bus from Houston, Texas, to
    Alexandria, Louisiana, and that Richard had paid Oden to
    transport more than 50 grams of cocaine base and approximately
    225 milliliters of codeine syrup on this trip.   Viewing the
    evidence in the light most favorable to the prosecution, a
    rational trier of fact could have found that the evidence
    established beyond a reasonable doubt that Richard knowingly and
    voluntarily conspired with two or more persons to violate the
    federal narcotics laws and that he possessed with intent to
    distribute more than 50 grams of cocaine base and codeine.     See
    United States v. Lopez, 
    74 F.3d 575
    , 577 (5th Cir. 1996).
    Richard argues that the district court abused its discretion
    in refusing to strike a prospective juror, Robert Fisher, for
    cause because he was a supervisor of prisoners who participated
    in the Rapides Parish Sheriff’s Department work release program.
    Because Fisher was not a deputy, law enforcement officer, or
    jailer, and because he stated that he could be impartial, the
    district court did not abuse its discretion in refusing to excuse
    Fisher for cause.   See United States v. Munoz, 
    15 F.3d 395
    ,
    396-98 (5th Cir. 1994).
    Richard argues that the district court erred in not
    submitting the precise drug quantity as an issue for the jury.
    No. 02-31117
    -3-
    Because Richard did not raise this issue in the district court,
    review is limited to plain error.     See United States v.
    Rodriguez, 
    15 F.3d 408
    , 414-15 (5th Cir. 1994).    Richard’s
    argument is foreclosed by this court’s precedent.     See United
    States v. Keith, 
    230 F.3d 784
    , 787 (5th Cir. 2000)(Apprendi v.
    New Jersey, 
    530 U.S. 466
     (2000), does not apply to cases “in
    which a sentence is enhanced within the statutory range based
    upon a finding of drug quantity.”).    The indictment alleged and
    the jury found that the conspiracy and possession offenses
    involved more than 50 grams of cocaine base.    Because Richard’s
    316-months sentence does not exceed the statutory maximum
    sentence of life imprisonment for an offense involving more than
    50 grams of cocaine base, Apprendi does not apply.
    AFFIRMED.
    

Document Info

Docket Number: 02-31117

Citation Numbers: 71 F. App'x 294

Judges: Dennis, King, Per Curiam, Smith

Filed Date: 7/14/2003

Precedential Status: Non-Precedential

Modified Date: 8/1/2023