United States v. Kevin Maurice Smith ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4625
KEVIN MAURICE SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-98-369)
Submitted: April 25, 2000
Decided: May 11, 2000
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert A. Ratliff, Cincinnati, Ohio, for Appellant. Walter C. Holton,
Jr., United States Attorney, Robert A. J. Lang, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Kevin Maurice Smith was convicted of conspiracy to
distribute cocaine base and two counts of distribution of cocaine base.
In this appeal, he challenges both his convictions and his sentence.
We affirm.
Smith first asserts the evidence was insufficient to sustain his con-
spiracy conviction because the Government's evidence varied from
the indictment. Specifically, he contends that the Government alleged
a single unified conspiracy but proved two smaller conspiracies, one
between Smith and Walter Clark and another between Smith and
Kenneth Dobson. The evidence, however, adequately demonstrates
that Smith, Clark, and Dobson all acted in concert. Clark and Dobson
both testified that they distributed cocaine with Smith and at least one
other person. The fact that Clark and Dobson lacked knowledge of the
other's identity does not negate that they engaged with Smith in a sin-
gle conspiracy. See United States v. Morsley, 64 F.3d 907, 919 (4th
Cir. 1995); United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.
1993).
Smith next claims the Government improperly relied on testimony
obtained through plea bargains with his co-conspirators. Smith argues
that such arrangements violate 18 U.S.C. § 201 (1994), but acknowl-
edges we have rejected this argument. See United States v. Richard-
son, 195 F.3d 192, 194-97 (4th Cir. 1999), cert. denied, ___ U.S. ___,
68 U.S.L.W. 3431 (U.S. Jan. 10, 2000) (No. 99-7186). Smith also
asserts that the use of numerous cooperating co-conspirators violates
due process. We have examined his arguments and find them unper-
suasive. Accordingly, we affirm Smith's convictions.
Finally, Smith contends the district court erred in enhancing his
sentence based on possession of a firearm and his managerial role in
the conspiracy. He alleges the firearm enhancement was based on
unreliable testimony. We defer to the district court's credibility deter-
mination, however. See United States v. Feurtado , 191 F.3d 420, 424
n.2 (4th Cir. 1999), pet. for cert. filed, ___ U.S.L.W. ___ (U.S. Mar.
1, 2000) (No. 99-8587). As for the managerial enhancement, it was
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not clearly erroneous for the district court to find Smith qualified for
a three-level enhancement based on payments and instructions he
gave one of his co-conspirators. See U.S.S.G. § 3B1.1(b); United
States v. Kincaid, 964 F.2d 325, 329 (4th Cir. 1992).
For these reasons, we affirm Smith'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 argu-
ment would not aid the decisional process.
AFFIRMED
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